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THULANI DERRICK NKUTAOxford University Press Southern Africa (Pty) Ltd
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Introduction to Law and Legal Skills in South Africa
Print edition ISBN 978-0-195994-63-6
epub edition ISBN 978-0-199046-73-7
© Oxford University Press Southern Africa (Pty) Ltd 2012
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First published 2012
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Set in Utopia Std Regular 9.5 pt on 12 pt by Barbara Hirsch
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Acknowledgements
The authors and publisher gratefully acknowledge permission to reproduce
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in subsequent impressions.
Contents in brief
COPYRIGHT
CHAPTER 1 INTRODUCTION
CHAPTER 2 THE POST-APARTHEID LEGAL
ORDER
CHAPTER 3 THE HISTORICAL FUNCTIONS OF
LAW: FROM THE ROMAN TO THE
CANONICAL PERIOD
CHAPTER 4 THE HISTORICAL FUNCTIONS OF
LAW: DEVELOPMENTS AFTER 1500
CHAPTER 5 SOURCES OF LAW AND LEGAL
AUTHORITY
CHAPTER 6 CLASSIFICATION OF SOUTH
AFRICAN LAW
CHAPTER 7 THE LEGISLATIVE PROCESS AND
THE INTERPRETATION OF
STATUTES
CHAPTER 8 ADJUDICATION, INTERPRETATION
AND DISPUTE RESOLUTION
CHAPTER 9 LITIGATION
CHAPTER 10 LEGAL ACTORS
CHAPTER 11 THE TESTING OF LEGAL RULES
AGAINST THE CONSTITUTION
CHAPTER 12 ACCESSING LEGAL INFORMATION:
WHERE AND HOW TO FIND LEGAL
INFORMATION
CHAPTER 13 WORKING WITH LEGAL PROBLEMS
Contents
Preface
List of authors
Acknowledgements
About the book
CHAPTER 1 INTRODUCTION – TRACY HUMBY, LOUIS KOTZÉ, ANÉL DU PLESSIS, DAVID
LETSAOLO
1.1 What is law?
1.2 The functions of law in society
1.3 Law and other social norms
1.4 How will this book help you to become a lawyer?
1.5 Structure of the book
CHAPTER 2 THE POST-APARTHEID LEGAL ORDER – JACO BARNARD-NAUDÉ
2.1 Introduction
2.2 Apartheid falls
2.3 From an interim to a final Constitution
2.4 The apartheid state and the significance of the final Constitution
2.4.1 The parliamentary sovereignty of the apartheid state
2.4.2 Constitutional sovereignty and the rule of law
2.4.3 Liberal democracy, the separation of powers and the countermajoritarian
dilemma
2.5 Transformative constitutionalism and transitional justice
2.5.1 The historic bridge
2.5.2 Amnesty and the Truth and Reconciliation Commission (TRC)
2.5.3 The Human Rights Violations Committee
2.5.4 The Reparations and Rehabilitation Committee
2.5.5 Transformative constitutionalism
2.6 Conclusion: the point of law
CHAPTER 3 THE HISTORICAL FUNCTIONS OF LAW: FROM THE ROMAN TO THE
CANONICAL PERIOD – WILLEMIEN DU PLESSIS
3.1 The historical function of law
3.2 External legal history, internal legal history and legal-historical frameworks
3.3 Roman law
3.3.1 Ancient law (753 BCE–250 BCE)
3.3.2 Pre-classical law (250 BCE–27 BCE)
3.3.3 Classical law (27 BCE–284 CE)
3.3.4 Post-classical law (284–527)
3.3.5 Justinian law (527–565)
3.4 Germanic tribes and legal development
3.4.1 Early Germanic law (up to 400)
3.4.2 Frankish period (400–800)
3.4.3 Feudal period (800–1100)
3.5 The High to Late Middle Ages (1000–1500)
3.5.1 Glossators
3.5.2 School of Orléans
3.5.3 Post-Accursiani
3.5.4 Post-Glossators
3.6 Canon law
CHAPTER 4 THE HISTORICAL FUNCTIONS OF LAW: DEVELOPMENTS AFTER 1500
WILLEMIEN DU PLESSIS
4.1 Introduction
4.2 The European contributions to legal development
4.2.1 France
4.2.2 Germany
4.2.3 Spain
4.2.4 England
4.2.5 The Netherlands
4.3 Historical legal developments in South Africa
4.3.1 Common law
4.3.1.1 The period 1652–1795
4.3.1.2 The period 1795–1806
4.3.1.3 The period 1806–1827
4.3.1.4 The period 1828–1910
4.3.2 African customary law
4.3.3 Religious legal systems
4.3.4 Historical development of the law in an international context
4.3.5 Historical development of the law in a regional context
CHAPTER 5 SOURCES OF LAW AND LEGAL AUTHORITY – LOUIS KOTZÉ, ANÉL DU
PLESSIS, JACO BARNARD-NAUDÉ
5.1 Introduction
5.2 Defining sources of law
5.2.1 The law as rules
5.2.2 The reasons for recognising sources of law
5.3 Sources of South African law
5.3.1 Constitution
5.3.2 Legislation
5.3.2.1 National legislation and regulations
5.3.2.2 Provincial legislation
5.3.2.3 By-laws
5.3.3 Judicial precedent
5.3.4 International, foreign and regional law
5.3.5 Common law
5.3.6 Custom
5.3.7 Indigenous law
5.3.8 Modern-day commentary on the law
CHAPTER 6 CLASSIFICATION OF SOUTH AFRICAN LAW – ANÉL DU PLESSIS, LOUIS
KOTZÉ
6.1 Introduction
6.2 International law
6.3 National law
6.3.1 Public law
6.3.1.1 Constitutional law
6.3.1.2 Administrative law
6.3.1.3 Criminal law
6.3.1.3.1 Substantive criminal law
6.3.1.3.2 Adjectival criminal law: criminal procedure
6.3.2 Private law
6.3.2.1 Substantive private law
6.3.2.1.1 Law of persons
6.3.2.1.2 Family law
6.3.2.1.3 Property law
6.3.2.1.4 Law of obligations
6.3.2.1.5 Law of succession
6.3.2.1.6 Personality law
6.3.2.2 Law of civil procedure and civil evidence (adjectival private law)
6.4 Hybrid sub-disciplines
6.4.1 Environmental law
6.4.2 Commercial law
6.4.3 Educational law
6.4.4 Information technology law
6.5 Integration of disciplines
CHAPTER 7 THE LEGISLATIVE PROCESS AND THE INTERPRETATION OF
STATUTES JACO BARNARD-NAUDÉ
7.1 Introduction
7.2 The difference between promulgation and passing
7.3 The legislative process at national level
7.4 Assent
7.5 The legislative process at provincial level
7.6 The legislative process at local level
7.7 The hierarchy and status of legislation
7.8 Amendments and repeal
7.9 Statutory interpretation
CHAPTER 8 ADJUDICATION, INTERPRETATION AND DISPUTE RESOLUTION JACO
BARNARD-NAUDÉ
8.1 Introduction: independence and impartiality as the cornerstones of adjudication
8.1.1 Introduction
8.1.2 The meaning of independence of the judiciary
8.1.3 The meaning of impartiality of judiciary
8.2 Terminology and types of proceedings
8.2.1 Civil disputes
8.2.1.1 Action proceedings
8.2.1.2 Application proceedings
8.2.1.2.1 Interdict proceedings
8.2.1.2.2 Declaratory orders
8.2.2 Criminal proceedings
8.2.3 Applying for leave to appeal or for review
8.3 The structure of the judiciary
8.3.1 Constitutional Court
8.3.2 Supreme Court of Appeal
8.3.3 High Courts
8.3.4 Magistrates’ courts
8.3.5 Specialised courts
8.4 The rules of precedent
8.4.1 Introduction
8.4.2 The relevance of the difference between ratio decidendi and obiter dicta
8.4.3 How the precedent system works
8.4.4 The effect of the Constitution on the precedent system
8.4.5 Types of judgments
8.5 Interpretation
8.5.1 General
8.5.2 Formalism
8.5.3 Realism
8.5.4 Hart’s interpretative position
8.5.5 Dworkin
8.5.6 Interpretation in a constitutional era
8.6 Alternative dispute resolution
8.6.1 Introduction
8.6.2 The primary forms of ADR and the differences between them
CHAPTER 9 LITIGATION – ADRIAN BELLENGÈRE, NEELS SWANEPOEL, MICHELLE KARELS
9.1 Introduction to procedural law
9.2 The legal processes
9.2.1 The administration of justice
9.2.2 The nature of trials in South African courts
9.2.3 Costs and their impact on access to justice
9.3 Introduction to the law of criminal procedure
9.3.1 Purposes of the law of criminal procedure
9.3.2 Criminal justice in the pre-constitutional era
9.3.3 Sources of criminal procedure
9.3.4 Stages of criminal procedure
9.3.4.1 The exploratory or pre-trial phase
9.3.4.1.1 The commission and reporting of crime
9.3.4.1.2 The investigation phase
9.3.4.1.3 The decision to prosecute and pre-trial preparation
9.3.4.1.4 The first appearance and bail application
9.3.4.2 The examination or trial phase
9.3.4.2.1 The trial on the merits
9.3.4.2.2 The trial on sentencing
9.3.4.3 Post-trial procedures
9.3.5 Legal costs in the criminal process
9.4 Introduction to the law of civil procedure
9.4.1 Different types of civil processes
9.4.1.1 Action proceedings
9.4.1.1.1 The pre-litigation stage
9.4.1.1.2 The pleading stage
9.4.1.1.3 The trial preparation stage
9.4.1.1.4 The trial phase
9.4.1.1.5 Post-trial
9.4.1.1.6 Appeal and review
9.4.1.2 Application proceedings
9.4.1.2.1 Ex parte applications
9.4.1.2.2 Applications on notice
9.4.2 Legal costs in the civil process
9.5 Introduction to the law of evidence
9.5.1 Types of evidence
9.5.1.1 Oral evidence
9.5.1.2 Documentary evidence
9.5.1.3 Real evidence
9.5.1.4 Direct and circumstantial evidence
9.5.1.5 Other probative matter
9.5.1.6 Machine-generated evidence
9.5.2 Admissibility of evidence
9.5.2.1 Evidence obtained in an unconstitutional manner
9.5.2.2 Hearsay evidence
9.5.2.3 Opinion evidence
9.5.2.4 Evidence affected by privilege
9.5.3 Evaluation of evidence
9.6 Appeal or review
CHAPTER 10 LEGAL ACTORS – JACQUES MAHLER-COETZEE
10.1 Introduction
10.2 Professionalism
10.3 Private legal practitioners
10.3.1 Attorney
10.3.2 Notary public
10.3.3 Conveyancer
10.3.4 Advocate
10.3.5 Paralegal
10.4 Public legal practitioners
10.4.1 Prosecutor and state advocate
10.4.2 State attorney
10.4.3 State legal adviser
10.5 Presiding officers
10.5.1 Judges
10.5.2 Magistrates
10.5.3 Small Claims Court commissioners
10.5.4 Traditional leaders
10.6 Court officials and related roles
10.6.1 The Master of the High Court
10.6.2 The registrar of the High Court
10.6.3 The clerk of the court
10.6.4 Family advocate
10.6.5 The sheriff
10.6.6 The police
10.7 Other legal officers and functionaries
10.7.1 The Registrar of Deeds
10.7.2 Commissioner of oaths
10.7.3 Marriage officer
10.8 The protectors
10.8.1 Public defender
10.8.2 Public Protector
10.9 Other legal institutions
10.9.1 The South African Law Reform Commission
10.9.2 The South African Human Rights Commission
10.9.3 Other important statutory bodies
10.10 Legal academics or academic jurists
CHAPTER 11 THE TESTING OF LEGAL RULES AGAINST THE CONSTITUTION
WARREN FREEDMAN, ILZE KEEVY
11.1 Introduction
11.2 Human rights
11.2.1 The definition of human rights
11.2.2 International sources of human rights
11.2.3 The classification of human rights
11.3 The South African Bill of Rights
11.4 The operational provisions
11.4.1 Introduction
11.4.2 Who may claim the rights in the Bill of Rights?
11.4.3 Who is bound by the rights in the Bill of Rights?
11.4.3.1 Introduction
11.4.3.2 The direct application of the Bill of Rights
11.4.3.3 The indirect application of the Bill of Rights
11.4.4 Has the right been infringed?
11.4.5 Is the infringement justifiable?
11.4.6 If the infringement is not justifiable, what is the most appropriate remedy?
11.5 The substantive provisions
11.5.1 Introduction
11.5.2 The right to equality
11.5.3 The importance of the right to equality
11.5.4 The test for equality
11.5.5 The Promotion of Equality and Prevention of Unfair Discrimination Act
CHAPTER 12 ACCESSING LEGAL INFORMATION: WHERE AND HOW TO FIND
LEGAL INFORMATION – CHRISTINE BRONKHORST
12.1 Introduction: locating legal information
12.2 Locating primary sources
12.2.1 South African cases
12.2.1.1 Navigating in the databases of Juta and LexisNexis when
locating cases electronically
12.2.1.2 Case Annotations/Noter-up
12.2.1.3 Finding cases on the Internet
12.2.2 South African legislation
12.2.2.1 Navigating in Juta or LexisNexis to locate legislation
electronically
12.2.2.2 Finding legislation on the Internet
12.2.3 Old authorities
12.2.4 International and foreign cases and legislation
12.2.4.1 Using Westlaw
12.2.4.2 Websites that provide access to international cases and
legislation
12.3 Locating secondary sources
12.3.1 Scholarly journal articles
12.3.1.1 Using keywords, Boolean operators and truncation
12.3.1.2 Finding articles in South African journal databases
12.3.1.2.1 How to use ISAP and SA ePublications
12.3.1.2.2 How to use the South African Legal Periodicals
Index (iSALPi)
12.3.1.2.3 How to use HeinOnline
12.3.1.3 Finding articles in international journal databases
12.3.2 Books
12.3.3 Masters and doctoral theses and dissertations
12.3.4 Reference works
12.3.4.1 Dictionaries
12.3.4.2 Encyclopaedias
12.3.4.2.1 Legal encyclopaedias
12.3.4.2.2 Open-access encyclopaedias
12.3.5 Internet
12.3.5.1 Search engines
12.3.5.2 Law subject guides, organisations and association websites
12.3.5.3 Criteria for the evaluation of information found on the Internet
12.3.6 Amler’s Precedents of Pleadings
CHAPTER 13 WORKING WITH LEGAL PROBLEMS – ANÉL DU PLESSIS
13.1 Introduction: understanding legal problems
13.1.1 Ordinary problems versus legal problems
13.1.2 Analysing a legal problem: the basics
13.2 Legal problems and the classification of the law
13.2.1 Fitting a legal problem within the classification of the law
13.2.2 Legal problems and contexts
13.3 Where and how to find the law to address legal problems
13.4 Analysis of law when dealing with legal problems
13.5 Applying the law to legal problems: logical legal arguments
13.5.1 Building a logical legal argument or preparing a legal response
13.5.2 Inductive, deductive, conductive and analogical reasoning to build a
logical legal argument
13.5.2.1 Inductive reasoning
13.5.2.2 Deductive reasoning
13.5.2.3 Conductive reasoning
13.5.2.4 Analogical reasoning
13.5.3 ‘Red lights’ when finalising a coherent solution
Bibliography
Table of cases
Table of legislation
Glossary of legal terms
Glossary of Latin and foreign terms
Index
Preface
This book has been designed for use in courses that introduce
students to law and the South African legal system. Most law
schools and faculties in South Africa offer such a course
during the first year of study for the LLB degree, usually at the
same time as or immediately preceding courses in substantive
law. Although the content of the ‘Introduction to Law’ course
differs somewhat from one institution to another, this type of
course generally serves two important functions within the
overall context of the LLB curriculum. First, it aims to impart
the contextual knowledge critical to understanding the
functioning of law as a system for regulating and restoring
social order, the tenets of which are often assumed and built on
in the teaching of substantive law courses. This, for example,
encompasses the distinction between law and other normative
systems, the sources of law and their interaction, the
classification of law, the basic structure of the state, the
structure of the courts, the rules of precedent, legal processes
and so on. Second, it has tended to be regarded as a ‘skills
course’ where first-year students are initiated into basic legal
reading, writing, research and critical thinking skills. In
conceptualising this book it was therefore necessary to engage
with debates relating to the teaching of skills while at the same
time ensuring that the book comprehensively addresses critical
issues of contemporary South African law at the appropriate
level of learning.
Skills-based teaching has now become something of a
watchword in South African law schools and faculties, and a
number of institutions are rethinking the configuration of legal
skills in their curricula. This is a much more daunting task
than what may appear at first sight because not only are legal
skills difficult to articulate and define, but also a skill mastered
in one context may not necessarily be transferred to another.
The problem of skills transfer may apply between courses in
the undergraduate curriculum (such as between the
Introduction to Law course and other substantive law courses)
or, equally, to the transfer necessary between the skill set
learnt in an academic context and the workplace. However,
educational theorists are now recognising that the problem of
skills transfer (and learning transfer generally as it has been
grappled with for more than a century) must be qualified by
the inherently situated nature of all learning. This means that
any skill is indelibly bound up with its context. A skill is not
so much an acquisition of something as an understanding of
how to act in a particular context, which carries with it
relations with other actors and artefacts. The situated nature of
skills means that they are only approximately transferable –
there will always be some aspect of a learnt skill that will
require additional learning (or even the undoing of learning)
and practice in a new context.
Such considerations informed the key decisions relating to
the design of this book. To begin with, an approach whereby
skills are taught as separate topics (having, for instance,
distinct chapters on reading or writing skills) was eschewed in
favour of a highly integrated approach which entailed
embedding and intertwining skills teaching with the traditional
substantive content of the Introduction to Law course. In
addition to developing the propositional content of their
chapters, the authors were therefore tasked with developing a
number of skills exercises that flow with the content of each
chapter rather than being tagged on at the end or in a separate
skills manual.
The issue of transferability also informed the focus of the
skills component of the book. If one conceptualises legal
professional skills in terms of variability across different
professional contexts, at the core of the required skill set is
what can be regarded as a type of literacy – the ability to
comprehend, critically engage with, manipulate and
(ultimately) create legal texts. This differs from skills such as
interviewing and counselling clients or engaging in trial
advocacy, which are both more specialised in terms of the
branch of the legal profession a graduate may pursue and
likely to vary even within such branches between different
workplace contexts. We hesitate to designate the latter as
‘practical’ or ‘workplace’ skills as this somehow posits the
skills that we have made the focus of this book as in some way
non-practical or non-workplace oriented. Rather, the position
opted for is that all skills are practical and of ultimate value in
the workplace. The skills that go to constituting a legally
literate graduate are marked, however, by being more
foundational and by being of broader application to a range of
legal professional work.
Some may argue that talk of ‘legal literacy’ is a bridge too
far, that legal texts are not so distinguished or specialised as to
constitute a distinct discourse and associated literacy. We
would tend to disagree. The mastery of law requires a mastery
of language, but it is no ordinary language. It requires learning
the meaning of new technical terms (including the remnants of
Latin phraseology that still pepper legal discourse) as well as
understanding the patterns of new discursive forms (most
notably the case report and legislation). More importantly, it is
about mastering a new orientation to language, one in which
meanings are not taken for granted, but are instead the site of
contestation and conflict. Such orientation underpins the
ability to see the potentially diverse interpretations of a
particular word or phrase, and to understand the linkages
between such interpretations and different normative positions
and centres of power in society. As such, it is a mastery that
should not only encompass technical proficiency, but also an
awareness of values that attach, Siamese-twin style, to any act
of interpretation and analysis. The final consideration is that at
present (and notwithstanding attempts to encourage the use of
indigenous languages in legal drafting and in particular courts)
English dominates the language of the law. Students whose
mother tongue is not English are therefore faced with a double
challenge.
The educational philosophy that underpins this book’s
attempt to nurture the ability to comprehend, engage with,
manipulate and create legal texts is that learning in this area
should be intense, graduated and systematic. We have assumed
that in order to master the language of the law, it is necessary
that students have extensive practice in working with legal
texts. It is for this reason that each chapter in this book
contains numerous skills exercises. How such exercises are
integrated into the pedagogy-curriculum-assessment nexus of
particular law schools and faculties will depend on numerous
factors such as the time allocated to the Introduction to Law
course, whether the course has an associated tutorial track and
the assessment policy of the particular university, among
others. Irrespective of how the skills exercises are formally
incorporated into the course, students should be encouraged to
attempt as many of the exercises as possible in order to fulfil
the practice requirement. Our approach is graduated because
students are first taken through exercises that allow them to
digest and master reading and working with parts of legal
texts, rather than expecting them to swallow everything whole
from the start. It is for this reason that portions of cases and
legislation are reproduced in the skills exercises for chapters 1
to 4, with students being expected to find and work with whole
case reports and pieces of legislation in the skills exercises
from chapter 5 onwards. This contrasts with the practice
followed in many law schools and faculties where students are
expected to read cases and legislation ‘from day one’ but the
cost of this ‘sink-or-swim’ approach is that many students do,
in fact, just sink without their minds being opened to the
mysteries of the legal texts. Our approach is systematic
because we guide students through engagement with a wide
variety of legal texts of differing levels of difficulty (older and
more recent case reports; cases involving simple majority as
well as split decisions; national, provincial and local
legislation; the texts of international legal organisations; media
summaries and reports of legal texts; the texts of the old
authorities), as well as focusing on the manner in which such
texts are interlinked (such as the interpretation of legislation
by the courts). We deal with the capstone achievement of
being able to bring different legal authorities to bear on a
single social and legally relevant problem in the final chapter
of the book that introduces the concept of problem solving.
This book is further distinguished by stretching the contours
of the traditional content offering of the Introduction to Law
course through, for instance, its detailed exposition of the shift
to the post-apartheid legal order and its more in-depth
coverage of South African legal history as well as the
development of international and regional law. It also
specifically aims to link legal concepts and principles to the
lived experience of first-year students using interesting and at
times provocative examples in both the skills exercises as well
as the ‘reframing’ boxes. In this way it also sensitises students
to the larger current socio-political-legal (and thus societal)
challenges in South Africa. The use of ‘counterpoint’ boxes
embeds the skill of critical legal thinking by highlighting
different or competing views on a particular issue, while the
‘thinking like a lawyer’ boxes point to some of the meta-
cognitive features of legal reasoning that are, in part, the
outcome of the conventions of working with legal texts. This
book is accompanied by an instructor’s manual that contains
further guidance on, in particular, the use of the skills
exercises contained in this book.
In developing this book we have drawn on the energies of
various expert authors who have been approached on the
strength of their experience in teaching skills and Introduction
to Law, as well as on their being experts in particular areas of
the law. We believe that this unique combination of authors,
together with our overall approach, have enabled us to create a
textbook which is novel in its approach, comprehensive in its
focus, and one that is situated at the appropriate level of
learning and which is generally representative of the various
current legal challenges that South African society faces in this
relatively young constitutional democracy. We would like to
thank each of the authors for the time and effort involved in
developing what has emerged as a new approach in this
particular literature. We would also like to thank Elmarie
Fourie and Lize Mills for their helpful reviews of this book.
The unending patience and commitment on the part of the staff
of Oxford University Press, particularly Penny Lane and Taryn
Talberg, must also be acknowledged.
Ultimately, it is our hope that Introduction to Law and Legal
Skills in South Africa will make a significant contribution to
the initiation of young people and novel law scholars into the
rich and complex legal culture that underpins our
constitutional democracy.
Tracy Humby
Louis J. Kotzé
Anél du Plessis
July 2012
List of authors
Tracy Humby (Editor)
BMus (University of Port Elizabeth) BProc LLB LLM
(University of South Africa) PGDip in Tertiary Education
(University of the Witwatersrand) PhD (University of the
Witwatersrand)
Tracy is an Associate Professor in the School of Law at the
University of the Witwatersrand where she specialises in
environmental and mining law. She recently completed her
PhD in the field of education focusing on the topic of the
formation of legal professional identity.
Louis Kotzé (Editor)
BCom (Potchefstroom University for Christian Higher
Education, now the North-West University) LLB
(Potchefstroom University for Christian Higher Education)
LLM cum laude (North-West University) LLD (North-West
University)
Louis is Professor of Law in the Faculty of Law, North-West
University, Potchefstroom Campus where he taught
introduction to law for almost 10 years. He currently teaches
environmental law at undergraduate and post-graduate level as
well as research methodology at post-graduate level. He is the
Director of the LLM Programme in Environmental
Governance Law at the North-West University and the
Deputy-Director of the Global Network for the Study of
Human Rights and the Environment. Louis is an Alexander
von Humboldt fellow and is a visiting professor at the
University of Ottawa and University of Giessen. He has
published extensively on issues related to environmental law
and governance.
Anél du Plessis (Editor)
BA LLB LLM (Potchefstroom University for Christian Higher
Education) LLD (North-West University)
Anél is a Professor in the Faculty of Law at the North-West
University, Potchefstroom Campus where she is involved in
the teaching of legal skills, legal research methodology and
legal writing. She also teaches local government and
environmental law, the two subject fields forming the basis of
her scholarly research, together with constitutional law and
human rights.
Willemien du Plessis
BJur LLB MA LLD (Potchefstroom University for Christian
Higher Education)
Willemien is a Professor in the Faculty of Law, North-West
University, Potchefstroom Campus where she teaches legal
history, foundations of South African law, environmental law
and land law. She is also an Advocate of the High Court of
South Africa.
Jaco Barnard-Naudé
BCom (Law) LLB LLD (University of Pretoria) MA
(University of Cape Town)
Jaco is a Professor in the Department of Private Law at the
University of Cape Town where he teaches and conducts
research in critical jurisprudence. He is an NRF-rated
researcher and recipient of the University of Cape Town
Fellows’ Award. He has been awarded visiting researcher and
honorary research fellowships by the Birkbeck Institute for the
Humanities, University of London, and has spent time at the
Max Planck Institute for Private International Law in
Hamburg, Germany. He is a member of the executive board of
the Institute for Justice and Reconciliation in Cape Town.
Warren Freedman
BCom LLB (University of the Witwatersrand) LLM
Postgraduate Certificate in Higher Education (University of
Natal)
Warren is an Associate Professor in the School of Law at the
University of KwaZulu-Natal in Pietermaritzburg where he
teaches constitutional law, environmental law and property
law. He was a member of the panel of experts appointed to
advise the KwaZulu-Natal legislature on the drafting and
adoption of a provincial constitution.
Jacques Mahler-Coetzee
BA Hons LLB LLM (University of Cape Town) PGDHET
cum laude (University of Fort Hare)
Jacques is a Senior Lecturer at the Nelson R. Mandela School
of Law at the University of Fort Hare where he received the
Vice Chancellor’s Excellence in Teaching Award. He teaches
medical jurisprudence, the law of delict, the law of persons
and family, and commercial law. He is also an Attorney of the
High Court of South Africa, an instructor with the
LSSA/LEAD School for Legal Practice in East London and an
experienced author.
Christine Bronkhorst
BBibl (University of the Free State) BBibl Hons cum laude
(University of Pretoria) M.IT (University of Pretoria)
Christine is the Law Librarian at the Potchefstroom Campus of
the North-West University (Ferdinand Postma Library). She
serves the Law Faculty and also the Business School.
Adrian Bellengère
BA LLB (University of Natal) LLM (University of Aberdeen)
Adrian is a Senior Lecturer at the University of KwaZulu-
Natal where he teaches the law of evidence and civil
procedure. He is also an Attorney and a Conveyancer of the
High Court of South Africa.
Neels Swanepoel
BA (Law) LLB (Stellenbosch University) LLM LLD
(University of the Free State)
Neels is Director and Associate Professor of the University of
the Free State Law Clinic. He previously practised at Hill
Mchardy and Herbst in Bloemfontein, was later admitted as an
Attorney of the High Court of South Africa and then as a
Conveyancer, and entered private practice as an attorney until
his appointment at the University of the Free State Law Clinic.
Professor Swanepoel has published on international criminal
law, clinical legal education and civil procedure.
Michelle Karels
LLB (University of the Free State) LLM (University of the
Free State)
Michelle is a Senior Lecturer in the Department of Criminal
and Procedural Law at the University of South Africa where
she lectures criminal procedure. She is also an Attorney of the
High Court of South Africa.
Ilze Keevy
BIuris LLD (University of the Free State)
Ilze is a Senior Lecturer in the Department of Constitutional
Law and Philosophy of Law, University of the Free State
where she has taught courses on environmental law,
international law, philosophy of law, law and gender, and
introduction to law. She is also an Advocate of the High Court
of South Africa.
David Letsoalo
BA HED (UNIN) BA Hons MA (Rhodes University) LLB
LLM (University of South Africa) Certificate in Sports Law
(University of Pretoria)
David is a Senior Lecturer in the Department of Jurisprudence
in the College of Law at the University of South Africa. He
has many years of experience teaching a practical legal skills
course for the LLB degree. His experience includes training
student participants for the Street Law Community Outreach
Project at the University of South Africa. He has developed
great interest in critical pedagogy and practical legal
education. His areas of specialty in law are sports law, labour
law and law of contract. At present, he is reading for a
doctoral degree in law (LLD) at the University of South Africa
focusing on employment/contractual aspects in the area of
sports law.
Acknowledgements
The authors and publisher gratefully acknowledge permission
to reproduce copyright material in this book. Every effort has
been made to trace copyright holders, but if any copyright
infringements have been made, the publisher would be grateful
for information that would enable any omissions or errors to
be corrected in subsequent impressions.
CHAPTER 2: p. 12 Image #105212245 Hector Pieterson. Credit:
Keystone-France/Gamma-Keystone via Getty Images/Gallo
Images; here The poem The Child by Ingrid Jonker. Reprinted
by permission of the Ingrid Jonker Trust; p. 15 Image
#APP2001021713857 Mandela goes free today. Credit:
Getty/AFP/Gallo Images.
CHAPTER 3: pp. 46–47 The importance of knowledge of
Roman law. Source: Balatseng, D.M. 2000. Roman law: To
assist law reform and law development. In Spruit, J.E.,
Kamba, W.J. and Hinz, M.O. (Eds). Roman Law at the
Crossroads, p. 7 at 9 and 12. Roman Law at the Crossroads:
Papers of the Congress organised by the Department of
Roman Law of the University of Utrecht and the Faculty of
Law of the University of Namibia, Windhoek 30 June – 1 July
1997. Edited by J.E. Spruit, W.J. Kamba and M.O. Hinz.
Kenwyn: Juta; p. 67 Figure 3.3 Map of Germanic tribes 486.
Source: Shepherd, W.R. 1923. Historical Atlas. New York:
Henry Holt. [Online]. Available at:
http://www.lib.utexas.edu/maps/historical
/shepherd/germanic_roman_486_1923.jpg [10 July 2012]; p.
68 Parental authority. Source: Kruger, H. 2004. The legal
nature and development of parental authority in Roman,
Germanic and Roman-Dutch law: A historical overview.
Fundamina, 10(1):84–112. Reprinted by permission of the
editors of Fundamina; p. 75 Volks v Robinson decision.
Source: Kruuse, H. 2009. ‘Here’s to you, Mrs Robinson’:
Peculiarities and paragraph 29 in determining the treatment of
domestic partnerships. SAJHR, 25(2):380–391. Reprinted by
permission of Juta & Company Ltd; pp. 78–79 Three differing
interpretations of the historical origin of the silence principle.
Source: Theophilopoulos, C. 2003. The historical antecedents
of the rights to silence and the evolution of the adversarial trial
system. Stellenbosch Law Review, 14(2):161–186. Reprinted
by permission of Juta & Company Ltd.
CHAPTER 4: pp. 86–88 Mort NO v Henry Shields-Chiat 2001
(1) SA 464 (C). Reprinted by permission of Juta & Company
Ltd; p. 95 The Majlessie Law Firm summarises the legal
developments in England from the seventeenth century.
Source: Adapted from: The Majlessi Law Firm. 2009. Legal
history of England. [Online]. Available at:
http://www.legalmetro.com/library/legal-history-of-
england.html [12 March 2012]; pp. 106–107 Sources of South
African insolvency law. Source: Calitz, J. 2010. Historical
overview of state regulation of South African insolvency law.
Fundamina, 16(2):1–27. Reprinted by permission of the
editors of Fundamina; p. 109 Transvaal Arcade Ltd v Rand
Townships Registrar 1923 AD 442. Source: LexisNexis.
Reprinted by permission of LexisNexis.
CHAPTER 5: pp. 137–141 Edelstein v Edelstein NO and Others
1952 (3) SA 1(A). Reprinted by permission of Juta &
Company Ltd.
CHAPTER 6: pp. 152–153 Brazil vows to take SA poultry
dispute to WTO. Source: International Centre for Trade and
Sustainable Development. 2012. Brazil vows to take SA
poultry dispute to WTO, Bridges South Africa, 17 February. ©
International Centre for Trade and Sustainable Development,
ICTSD. All rights reserved. (http://www.ictsd.org); p. 161
Piracy in South Africa. Source: South African Federation
against Copyright Theft. 2012. [Online]. Available at:
http://www.safact.co.za/piracy_facts.htm. [21 April 20102].
Reprinted by permission of the South African Federation
against Copyright Theft.
CHAPTER 7: pp. 170–171 R v Zuma [1952] All SA 7 (N).
Source: LexisNexis. Reprinted by permission of LexisNexis;
p. 173 State law adviser says Info Bill is democracy in action.
Author: Donnelly, L. Source: Donnelly, L. State law adviser
says Info Bill is democracy in action. Mail and Guardian,
August 12 to 18 2011: 12. [Online]. Available at:
http://mg.co.za/article/2011-08-12-state-law-adviser-says-info-
bill-is-democracy-in-action/ [12 July 2012].
CHAPTER 8: p. 187 Selebi. Source: Basson, A. and Rawoot, I.
2009. Selebi trial: Judge Joffe stands firm. Mail and Guardian,
30 October. [Online]. Available at:
http://mg.co.za/article/2009-10-30-selebi-trial-judge-joffe-
stands-firm [26 April 2012]; De Vos, P. 2009. Jackie Selebi’s
recusal application. Constitutionally Speaking, 29 October.
[Online]. Available at:
http://constitutionallyspeaking.co.za/jackie-selebis-recusal-
application/ [26 April 2012]; pp. 189–190 Impartiality. Source:
Bonthuys, E. 2008. The personal and the judicial: Sex, gender
and impartiality. SAJHR, 24(2):239–262. Reprinted by
permission of Juta & Company Ltd; p. 205 John Dugard’s
lecture on American realism. Source: Abstract from the article
by Albertyn, C. and Davis, D. 2010. Legal realism,
transformation and the legacy of Dugard. SAJHR, 26(2):188–
216. Reprinted by permission of Juta & Company Ltd.
CHAPTER 9: p. 229 The poem Possibilities for a man hunted by
SBs by Farouk Asvat. Source: Ragland, C. (Ed.). 1980.
International Portland Review, p. 331.
CHAPTER 10: p. 271 Image of statue of justice. Credit:
Bigstock.
CHAPTER 12: pp. 316–320, 324–327 Juta & Co screenshots and
logo reprinted by permission of © Juta & Company; pp. 316–
318, 321–323, 325–327, 340, 341, 344 LexisNexis screenshots
and logo reprinted by permission of © LexisNexis; p. 335
Constitutional Court logo and screenshots reproduced by
permission of the Constitutional Court of South Africa; pp.
332–334 Sabinet screenshots and logo reprinted by permission
of © SABINET; pp. 336, 338 HeinOnline screenshots:
HeinOnline a product of William S. Hein & Co., Inc.
Reprinted with permission; pp. 329, 337 The Westlaw logo
and screenshots were reprinted from Westlaw with permission
of Thomson Reuters; p. 343 Google logo and screenshot.
CHAPTER 13: pp. 349–350 Naas doesn’t have to love son –
judge. Source: Naas doesn’t have to love son – judge. 1999.
IOL News, 12 October. [Online]. Available at:
http://www.iol.co.za/news/south-africa/naas-doesn-t-have-to-
love-son-judge-1.12519. [15 July 2012]. Reprinted by
permission of IOL News; p. 356 Link between Terre’Blanche
death, song disputed. Source: SAPA. 2011. Link between
Terre’Blanche death, song disputed. News24, 6 May. [Online].
Available at:
http://m.news24.com/news24/SouthAfrica/News/Link-
between-TerreBlanche-death-song-disputed-20110506 [15
July 2012]. Reprinted by permission of SAPA.
About the book
Introduction to Law and Legal Skills in South Africa is a
pedagogically rich learning resource. This book is designed to
instil a strong understanding of legal concepts and context, and
to form students’ development as legal professionals,
providing foundations for successful studies and proficient
practice. Integrated skills exercises complement the
substantive content in a resource which is designed to develop
the ability to engage with legal subject matter and to acquire
and apply knowledge effectively.
Brief description of features
Reframing: This feature highlights examples of everyday life
which demonstrate an aspect of the law or the legal system. It
introduces legal concepts through the lens of familiar
experience and constructively develops understanding through
a graduated approach.
Counterpoint: This feature supports the ability to think
critically and flexibly. The material in this feature highlights
specific criticisms of the law just described or different points
of view on a particular phenomenon. It helps students to think
critically about legal authority by identifying the possibility of
different legal arguments based on the same authority. It
assists students to conceptualise legal issues from various
perspectives, to develop skills in formulating legal argument
and to build an awareness of various opinions about a
particular principle.
Pause for reflection: This feature is designed to instil a
broader and deeper understanding of the subject matter. It may
call on students to consider the policy ramifications of the law,
how it works in practice, its logic and consistency with other
principles, possible alternatives and other key issues. It
stimulates discussion, supports independent thinking and
develops the ability to engage meaningfully with relevant
issues.
Thinking like a lawyer: This feature draws students’
attention to the specific features of legal epistemology and
those aspects which distinguish ‘thinking like a lawyer’ from
other reasoning. The subject matter may, for example, consider
the manner in which the legal system classifies a particular
issue or the manner in which legal procedure affects the way
in which an issue is conceptualised. This feature alerts
students to the meta-cognitive dimension of their learning.
Explanations of legal terminology: Whenever a legal term is
used for the first time, the legal technical meaning of that word
is highlighted in the main text and explained in the margin and
the glossary.
Diagrams: These provide overviews and explain key concepts
visually. They clarify and build understanding by presenting
material in a clear, graphic way. Diagrams may focus on a
single concept or process, or alternatively may demonstrate
how several aspects or concepts interrelate.
Algorithms: These are step-by-step, word-based or
diagrammatic guides to assist students to think through a
specific process. While they do not direct students to a
particular outcome, they provide a mapped pathway for
thought processes and demonstrate the logical direction which
results from the choice of a particular option.
Tables: Tables are used to clarify and distinguish content, and
to aid conceptualisation where helpful.
Chapter 1
Introduction
1.1 What is law?
1.2 The functions of law in society
1.3 Law and other social norms
1.4 How will this book help you to become a
lawyer?
1.5 Structure of the book
This chapter in essence
1.1 What is law?
People need rules to regulate their interaction with each other
and their interaction with things, to maintain order in a society,
to determine what is acceptable and what is not, and to know
what is and is not permissible. We call these rules law because
law provides the rules that guide human behaviour in society.
The law prescribes what is acceptable and not acceptable,
what type of behaviour must be rewarded and what type of
behaviour must be punished to avoid future repetition. It also
holds people accountable for harm they have done. This book
introduces you to the law and its meaning in South Africa. It
further aims to equip you with some of the skills necessary to
use, apply, critique and contribute to the development of the
law.
Law is an attribute of human life that appears when people
group or associate themselves into a society. Some authorities
suggest that primitive people lived in a state of chaos where
there were no real rules, duties or limitations. The philosopher,
Thomas Hobbes (1588–1679), called this a ‘state of nature’. In
such a state, ruled by pure instinct, small groups of human
beings such as families or tribes eventually came to the
realisation that if they did not order their society, they would
soon become extinct.
The realisation that people need order eventually gave rise
to a ‘social contract’ in terms of which the members of a
community would authorise their leaders to organise the group
to ensure its survival. In exchange for the sacrifice of their
unlimited freedom in a state of nature, they would receive in
return the guarantee of protection and order from these
leaders. According to some thinkers, it is only once such a
society comes into being that we can start talking of
civilisation and law. The stable and progressive primitive
society that entered into the social contract eventually started
to enjoy the luxury of thinking of the future and planning
ahead. When members of a tribe have the stability and self-
confidence to sow seeds for next season’s use, they stop being
hunter-gatherers and become pastoral. This is often mentioned
as a prerequisite for the establishment of law in a society.
Law is an integral part of our lives. To be sure, we have
become so used to ‘living with the law’ and being subject to
legal regulation that we barely even notice it today.
REFRAMING
Law influences almost every aspect of our lives – from our most
personal relationships to our commercial transactions with others, and to
the impacts strangers may have on our lives through actions that
intentionally or unintentionally cause us harm. Choose one area of your
life where you interact with other people or things and which you believe
is governed by law. Think about how the law affects your life and those
of others. What do you think is the underlying need for law in this
particular area of social life? Would anything happen to you if you fail to
act according to the law?
Despite the law being part of our everyday lives, law as a
concept is notoriously difficult to define. Law is usually
defined as the body of rules governing human conduct,
recognised as binding by people and enforced by public
authorities (the state). Unlike ‘laws’ in scientific disciplines
such as mathematics, physics or economics, or practical rules
governing conduct such as in sport, law is prescriptive rather
than descriptive. Law prescribes how human beings in an
ordered society ought to behave and what should happen if
they depart from prescribed legal norms. This is very different
from ‘laws’ in mathematics, physics or economics, which are
attempts to describe certain uniformities or regularities in the
natural or human world such as the law of gravity, the first law
of thermodynamics or the law of diminishing returns. The law,
in contrast, is a set of prescriptions for orderly conduct in a
society. It can be enforced, it provides punishment for
unacceptable behaviour and it rewards behaviour that a society
deems acceptable.
Most people would agree that law has to do with the
ordering of society and that it has to do with prescriptive rules
as opposed to descriptive or scientific rules. Beyond this broad
agreement, there is a great variety of views as to what law is.
The meaning of the concept of ‘law’ and the nature of law in
general are pivotal problems in legal theory or jurisprudence,
and even the simplest proposition will turn out to be
surprisingly controversial. In response to the question ‘What is
law?’, for instance, some people have argued that law is
essentially something invented for humans by humans, and
that rules of law are human-made or ‘posited’ by humans. This
is indeed one of the tenets of a school of thought known as
legal positivism. However, a school of philosophers known as
natural lawyers would lodge a counterclaim. They would
argue that human laws ought to be judged against a higher
standard of morality – ‘natural law’ – and that human laws
falling short of the standard are not really laws at all. Others
have defined law as a neutral system of rules agreed on to
ensure the harmonious coexistence of a particular society. A
Marxist lawyer would point out that the law is not neutral
since it always favours the interests of the ruling class. People
are fooled into thinking that law is neutral, a Marxist would
say, whereas in reality it is an instrument for oppressing the
proletariat or working class. A feminist, in turn, would argue
that the law entrenches gender inequality.
Skills exercise 1.1
Read the extract below and then answer the questions that follow.
What a subject is this in which we are united – this abstraction called
the Law, wherein, as in a magic mirror, we see reflected, not only our
own lives, but the lives of all men that have been! When I think on this
majestic theme, my eyes dazzle. If we are to speak of the law as our
mistress, we who are here know that she is a mistress only to be
wooed with sustained and lonely passion – only to be won with all the
faculties by which man is likest to a god. Those who, having begun the
pursuit, turn away uncharmed, do so either because they have not
been vouchsafed the sight of her divine figure, or because they have
not the heart for so great a struggle. […] When I think thus of the law, I
see a princess mightier than she who once wrought at Bayeux,
eternally weaving into her web dim figures of the ever-lengthening past
– figures too dim to be noticed by the idle, too symbolic to be
interpreted except by her pupils, but to the discerning eye disclosing
every painful step and every world-shaking contest by which mankind
has worked and fought its way from savage isolation to organic social
life.
But we who are here know the Law even better in another aspect.
We see her daily, not as anthropologists, not as students and
philosophers, but as actors in a drama of which she is the providence
and ruling power. When I think of the Law as we see her in the
courthouse and the market, she seems to me a woman sitting by the
wayside, beneath whose overshadowing hood every man shall see the
countenance of his deserts and needs. The timid and overborne gain
heart from her protecting smile. Fair combatants, manfully standing to
their rights, see her keeping the lists with the stern and discriminating
eye of even justice. The wretch who has defied her most sacred
commands, and has thought to creep through her ways where she
was not finds that his path ends with her, and beholds beneath her
hood the inexorable face of death.1
1. What aspects of the law do you think the author highlights in the three
metaphors employed in this passage (law as a mistress, as a mighty
princess and as the woman by the wayside)?
2. Is there any basis on which you could critique this author’s view of the
law?
1.2 The functions of law in society
As we indicated earlier, the foremost function of law is to
ensure order in the relationships and interactions among
people and between people and things in a society. A lawless
society would be marked by arbitrariness, inequality,
uncertainty, unfairness, unreasonableness and self-help. It
would be a conflict-ridden society in which those most
physically, financially or otherwise powerful would rule.
REFRAMING
Can you think of a country or society today anywhere in the world where
such ‘lawless’ conditions prevail? What are the underlying reasons for
these countries or communities seeming to be ‘lawless’? What could be
the short- and long-term consequences for a country in which ‘lawless’
conditions prevail and would these consequences be confined to the
borders of the country in an era of globalisation?
Law maintains order and justice in the community, making it
possible for persons with different and competing interests to
live alongside each other. It establishes order in a huge variety
of human relationships, from the relationship between
domestic partners, to the ties among business and trading
partners, and to the relationship between people and the state.
It does so by specifying the nature and extent of rights, duties,
powers and immunities arising in such relationships and it
establishes the judicial system as the authoritative system by
which disputes are settled. Owing to the overall efficiency of
the law, the vast majority of actions within legal relationships
never give rise to disputes. This establishes a basis for peace,
security and certainty which allows people to make longer-
term commitments.
We see from the foregoing that law is a device used to
regulate economic and social conduct in society. It introduces
an element of control by governing the activities of people and
businesses. If people lived in complete isolation on a desert
island and did not carry on any economic activity or recognise
any superior authority, there would be no need for laws to
exist because there would be nothing to regulate and nothing
to control. However, the reality is that people live together in
communities. The members of human society share a common
government, for example. They come into contact with one
another and it is inevitable that in some instances conflict will
arise because they have different needs and wants. The law
provides the mechanisms for society to function through tools
such as written laws (legislation) and policing. The law not
only prescribes what people cannot do, it also tells them what
they can do and what they must do. For example, a person
cannot steal from an employer, but can rent a house and must
pay taxes. The law also guarantees certain freedoms, permits
free enterprise and provides a means to settle disputes
peacefully.
Skills exercise 1.2
Read section 2 of the Mineral and Petroleum Resources Development Act2
below:
2 Objects of Act
The objects of this Act are to–
(a) recognise the internationally accepted right of the State to exercise
sovereignty over all the mineral and petroleum resources within the
Republic;
(b) give effect to the principle of the State’s custodianship of the nation’s
mineral and petroleum resources;
(c) promote equitable access to the nation’s mineral and petroleum
resources to all the people of South Africa;
(d) substantially and meaningfully expand opportunities for historically
disadvantaged persons, including women, to enter the mineral and
petroleum industries and to benefit from the exploitation of the
nation’s mineral and petroleum resources;
(e) promote economic growth and mineral and petroleum resources
development in the Republic;
(f) promote employment and advance the social and economic welfare
of all South Africans;
(g) provide for security of tenure in respect of prospecting, exploration,
mining and production operations;
(h) give effect to section 24 of the Constitution by ensuring that the
nation’s mineral and petroleum resources are developed in an orderly
and ecologically sustainable manner while promoting justifiable social
and economic development; and
(i) ensure that holders of mining and production rights contribute
towards the socio-economic development of the areas in which they
are operating.
Comment on the range of functions this particular piece of legislation places
on the law. (Hint: Think about the relationships between people and
between people and aspects of the external environment that arise from
these objectives.)
1.3 Law and other social norms
Law is not the only normative system (or system of rules) that
attempts to guide human conduct. For many centuries law has
existed alongside various systems of religion and morality
which, like law, are normative to the extent that they provide
rules to regulate human behaviour. Religion is associated with
a belief in powers superior to people, powers which are
thought to control the course of nature and human life itself,
and which may dictate rules of conduct for humans. Morality
is a system of morals – these are individual or group beliefs
about what is right and what is wrong. There is obviously a
close connection between morality and religion since many
standards of right and wrong are dictated or inspired by
religion. There is also a connection between law and morality
since the law, too, is concerned with upholding standards.
There is also a connection between law and religion – law is
often influenced by religious rules, practices and beliefs.
Sometimes religion is even used to uphold and justify a
specific legal system. The standards of law and morality are
not necessarily the same, however. In apartheid South Africa,
for instance, a social system internationally regarded as
morally evil was upheld and enforced by law for more than 40
years.
Skills exercise 1.3
Read the Constitutional Court’s Media Summary of the MEC for Education:
KwaZulu-Natal v Pillay3 and then answer the questions that follow.
MEDIA SUMMARY
The following media summary is provided to assist in reporting this
case and is not binding on the Constitutional Court or any member of
the Court.
On 20 and 21 February the Constitutional Court heard an appeal from
the KwaZulu-Natal High Court concerning the right of a learner to wear
a nose stud to school. In 2004 Sunali Pillay returned to Durban Girls’
High School from the spring holiday with a small nose stud. After a
period of correspondence between the school and Sunali Pillay’s
mother, Ms Pillay, the school decided that Sunali Pillay should not be
allowed to wear the stud. Ms Pillay took the school and the KwaZulu-
Natal MEC for Education to the Equality Court alleging that they had
unfairly discriminated against Sunali Pillay and had violated her
religious and cultural rights.
The Equality Court found that the school had not unfairly
discriminated against Sunali Pillay. On appeal, the High Court
overturned the decision, finding that the school had discriminated
against Sunali Pillay and that the discrimination was unfair. The High
Court declared the decision prohibiting the wearing of a nose stud, in
school, by Hindu/Indian learners to be null and void. Both the school
and the Department appealed directly to this Court. After the appeal
was lodged, Sunali Pillay completed her matric and left the school.
Chief Justice Langa wrote the majority judgment, concurred in by
Moseneke DCJ, Madala J, Mokgoro J, Navsa AJ, Ngcobo J, Nkabinde
J, Sachs J, Skweyiya J and Van der Westhuizen J, which dismissed
the appeal. He found that it was in the interests of justice for the Court
to consider the matter because of the impact the decision would have
on schools across the country.
He held that the rule prohibiting the wearing of jewellery had the
potential for indirect discrimination because it allowed certain groups
of learners to express their religious and cultural identity freely, while
denying that right to others. The evidence before the Court showed
that the wearing of a nose stud was a voluntary practice that formed
part of Sunali Pillay’s South Indian Tamil Hindu culture, which itself
was inseparably intertwined with Hindu religion. He emphasised that
both obligatory and voluntary practices qualified for protection under
the Equality Act. The school had therefore interfered with Sunali
Pillay’s religion and culture. As that burden was not imposed on
others, the school’s interference amounted to discrimination against
Sunali Pillay. What was relevant was not whether the practice was
characterised as religious or cultural, but the importance it held for the
individual in question. Nor was it sufficient to state that Sunali Pillay
could attend another school. Our Constitution requires the community
to affirm and reasonably accommodate difference, not merely to
tolerate it as a last resort.
Langa CJ observed that the school had taken meaningful steps to
accommodate diversity in its community, and that uniforms and school
rules served an important purpose in education. However, this case
was not about uniforms in general, but about a specific exemption to a
uniform. There was no evidence that permitting this particular
exemption would imperil uniformity or school discipline in general. The
fact that granting an exemption to Sunali Pillay might encourage more
learners to express their religion or culture was to be celebrated, not
feared.
Accordingly, the Chief Justice concluded that the school’s
discrimination against Sunali Pillay was unfair. He granted an order
declaring that the refusal by the school to grant her an exemption from
the Code unfairly discriminated against her. In addition, he ordered
that the school, in consultation with learners, parents and staff, amend
the Code to provide for a procedure to reasonably accommodate
religious and cultural practices. The Department was ordered to pay
Ms Pillay’s costs, while the other parties had to bear their own costs.
O’Regan J wrote a separate judgment in which she dissented in part
from the order made by the Court. She agreed with the majority that
the Code was unfairly discriminatory because it did not contain a clear
exemption procedure to ensure that the uniform rules of the Code did
not result in unfair discrimination. She therefore concurred in the order
made by the Court which requires the school to amend the Code on
this basis. She concluded that had Ms Sunali Pillay not left the school
it would have been appropriate for the matter to be referred back to it
for a proper exemption procedure to be followed. As Ms Sunali Pillay
had left the school, such an order was no longer appropriate. O’Regan
J considered in some detail the relationship between religion and
culture in our constitutional scheme and emphasised that our
Constitution required public educational institutions to foster
environments in which learners from different cultural and religious
backgrounds would feel that they are equally respected and valued.4
1. Read the media summary in full again. Now in three separate
paragraphs distinguish between:
a) the religious/cultural norms which were at stake
b) the rules of the school which were at stake
c) the overarching norm of the prohibition of unfair discrimination on the
basis of culture or religion. Is this a legal, moral or religious norm? If it
is a legal norm, what is its source?
2. Argue the deeper meaning and practical implication of the Court’s
observation for the people in South Africa. What does it mean for people
who have different religious views or cultural practices, for example? Do
you think that some limitations could apply in peoples’ exercising of their
religious and cultural rights? Can all religious and cultural practices be
protected at all times?
3. Write a short paragraph in which you show with reference to practical
examples (other than those discussed in this chapter) how morality and
religion may reinforce the objectives of the law as well as how morality
and religion could possibly defeat or come into conflict with the
objectives of the law.
1.4 How will this book help you to become a
lawyer?
This book provides you with the theory most significant to an
introduction to South African law. You could think of your
legal education as a toolbox where the numerous modules that
you will complete and practical training you will receive are
all tools to assist you in your legal apprenticeship. However,
being a lawyer does not only require you to have a sound
understanding and knowledge of the theory of law. You must
also be able to use the law, to engage with it, to interrogate it
critically, to interpret it and, most of all, to apply it in
innovative ways to often complex legal problems.
For this purpose, the theory in this book is reinforced and
illustrated through practical exercises and opportunities for
reflection that also serve as a means to practise the most
important legal skills such as analytical thinking, reading and
writing. Practising your skills as a lawyer is a crucial part of
this book. While a sound knowledge of the theory of South
African law is important, we believe that it is not enough
simply to write about a particular skill and then provide one or
two examples in the text that ‘apply’ that skill. The most
important legal skills, such as learning how to read legal texts
quickly and effectively, require extensive practice over a
sustained period of time. All skills exercises have therefore
been integrated in the theoretical parts of the book and they
aim to equip you with the skills necessary to complete your
legal apprenticeship successfully.
In short, our approach is that in your journey to becoming a
lawyer or a legal practitioner, you cannot be satisfied with
only mastering the theory of law or content knowledge. It is in
the nature of a legal career that a law student, one way or the
other, be in a position to apply his or her knowledge of the law
in a practical situation. It is thus important that when using this
book, you should always be mindful of the fact that knowledge
of the law is not the ultimate purpose. There is a strong need to
go beyond knowledge of the theory and reach the level of
application or skill. It is indeed not helpful for you to have all
the knowledge if you cannot use it when practical
circumstances require you to.
It is in this respect that the legal theory advocated in this
book is integrated with various skills that we believe are
crucial for you to become an effective student of law. It is
important to note that the exercises in the book will not help
you develop all the legal skills you require. Lecturers, students
and other users of this book will benefit if they recognise that
skills need to be developed. You cannot develop particular
skills if you do not actively get involved and practically do
things in relevant situations. As an example, you may study a
great deal on how to find and retrieve information or sources
of law. Knowing all the steps to find a particular source in the
library will remain mere knowledge if you cannot actually do
it. Similarly, knowing the meaning or definition of a particular
legal concept, for example an opening address in oral
advocacy, will amount to nothing if you cannot actually draft it
when required.
1.5 Structure of the book
This book commences with Chapter 2 The post-apartheid
legal order. This chapter discusses the transformation of the
South African legal order from one couched in inhumane and
vicious racial discriminatory terms to one which today
embraces democracy, the rule of law, constitutionalism and
fundamental human rights, among others. These fundamental
changes have been brought about by the Constitution of the
Republic of South Africa, 1996.5 Importantly, it reflects
critically on the many challenges that the post-apartheid legal
order poses for South Africans generally and lawyers
specifically.
Chapter 3 The historical functions of law: from the Roman
to the canonical period and Chapter 4 The historical functions
of law: developments after 1500 provide you with an overview
of the historical development of South African law. We believe
that a sound understanding of the historical roots of South
African law tells us much about South African law today. It
offers us the opportunity to understand why our legal system
looks the way it does and it further provides the context to
situate contemporary legal developments. Historical insight
into our legal system is important because many of the
contemporary sources of South African law can be traced back
directly to the historical sources and are used even to this day
by lawyers and the courts. While legal history is increasingly a
neglected subject in South African legal education, we believe
that it remains imperative for a sound and comprehensive
understanding of modern South African law, simply because in
many ways it is modern South African law.
Chapter 5 Sources of law and legal authority and Chapter 6
Classification of South African law are closely related. They
identify and discuss the sources from which South African law
originates and on which it is based, as well as the various sub-
disciplines or branches that make up South African law. An
understanding of the sources of law is both necessary for
finding the law and for understanding the interlinkages
between the modules that you will study during the course of
your legal studies.
Chapter 7 The legislative process and the interpretation of
statutes discusses the legislative process through which we
develop legislation. It specifically emphasises the many ways
in which substantive (as opposed to procedural) law is
developed. Chapter 8 Adjudication, interpretation and dispute
resolution reflects on how these legal rules are applied and
interpreted by, among others, the South African courts.
Chapter 8 goes hand in hand with Chapter 9 Litigation. This
chapter seeks to acquaint you with the procedural aspects of
South African law; in other words, the numerous rules that we
use to enforce substantive law either by way of criminal and/or
civil processes.
Chapter 10 Legal actors provides a comprehensive survey
of the actors in the South African legal profession and the
legal system.
Chapter 11 The testing of legal rules against the
Constitution specifically explores the theme of post-apartheid
constitutionalism that permeates the South African legal
system by focusing on the supremacy of the Constitution and
the new standard it sets to which all laws must conform.
We cannot know or work with the law if we do not know
where and how to find it. Chapter 12 Accessing legal
information: where and how to find legal information provides
a thorough treatment of where and how you can access the law
and, more specifically, the sources of law. It focuses primarily
on the law library and legal databases as the main sources of
where to find the law. It explains in detail the steps you will
need to follow to retrieve information from these sources of
law. (You can study this chapter alongside chapters 5 and 6.)
One of your main tasks as a lawyer is to solve legal
problems. Chapter 13 Working with legal problems is the final
chapter which explains how you should go about
distinguishing between ordinary problems and legal problems,
how to approach legal problems creatively and how to go
about finding solutions to legal problems systematically.
THIS CHAPTER IN ESSENCE
1. Law is usually defined as the body of rules
governing human conduct, recognised as binding by
people and enforced by public authorities (the state).
2. The foremost function of law is to ensure order in
the relationships and interactions among people and
between people and things in a society.
3. For many centuries law has existed alongside
various systems of religion and morality which, like
law, are normative to the extent that they provide
rules to regulate human behaviour.
4. It is important that you not only master the theory of
law or content knowledge, but that you also practise
your legal skills so that you are in a position to apply
your knowledge of the law in practical situations.
Notes
1 Holmes, O.W. 1920. Collected Legal Papers, pp. 26–28.
2 28 of 2002 (the ‘Mineral and Petroleum Resources Development
Act’).
3 2008 (1) SA 474 (CC).
4 Constitutional Court. 2007. Media Summary of the MEC for
Education: KwaZulu-Natal v Pillay. [Online].
Available at: http://www.saflii.org/za/cases/ZACC/2007/21media.pdf
[20 May 2012].
5 Hereinafter referred to as the ‘Constitution’.
Chapter 2
The post-apartheid legal order
2.1 Introduction
2.2 Apartheid falls
2.3 From an interim to a final Constitution
2.4 The apartheid state and the significance of the final Constitution
2.4.1 The parliamentary sovereignty of the apartheid state
2.4.2 Constitutional sovereignty and the rule of law
2.4.3 Liberal democracy, the separation of powers and the countermajoritarian
dilemma
2.5 Transformative constitutionalism and transitional justice
2.5.1 The historic bridge
2.5.2 Amnesty and the Truth and Reconciliation Commission (TRC)
2.5.3 The Human Rights Violations Committee
2.5.4 The Reparations and Rehabilitation Committee
2.5.5 Transformative constitutionalism
2.6 Conclusion: the point of law
This chapter in essence
2.1 Introduction
A truly transformative South Africa requires a new approach that places the Constitutional dream at
the very heart of legal education.1
P. LANGA
Figure 2.1 The iconic image of the dying Hector Pieterson during the 1976 Soweto uprising
inaugurate: admit formally to office
On 24 May 1994, Nelson Mandela inaugurated the first democratic parliament in South Africa
with a poem:
The Child
The child is not dead
the child lifts his fists against his mother
who shouts Africa! …
The child is not dead
Not at Langa nor at Nyanga
nor at Orlando nor at Sharpeville
nor at the police post at Philippi
where he lies with a bullet through his brain …
the child is present at all assemblies and law-giving
the child peers through the windows of houses
and into the hearts of mothers
this child who only wanted to play in the sun at Nyanga
is everywhere
the child grown to a man treks on through all Africa
the child grown to a giant journeys
over the whole world
without a pass!2
The Afrikaans poet, Ingrid Jonker, wrote this poem in the aftermath of the massacre at the anti-pass
demonstration in Sharpeville on 21 March 1960. Mandela read the poem at the inauguration of a
new political and legal order in South Africa because he believed that Jonker, in her ‘glorious
vision’, ‘instructs that our endeavours must be about the liberation of the woman, the emancipation
of the man and the liberty of the child’.3 He went on to say:
It is these things that we must achieve to give meaning to our presence in this chamber and to give purpose to our
occupancy of the seat of government.
And so we must, constrained by and yet regardless of the accumulated effect of our historical burdens, seize the time to
define for ourselves what we want to make of our shared destiny.4
So it came about that the course of the post-apartheid legal order was set by a poem.
REFRAMING
Many law students today have grown up in the post-apartheid era and have no direct experience of the degrading and
pernicious effects of apartheid laws. Imagine if you were not allowed to move around freely in your own town or city.
What would it be like if you had to carry an official document around with you at all times for the purpose of showing
that you are allowed to be in a certain area? How would you feel if a member of the South African Police Service
(SAPS) could arrest you for failing to have your document at hand?
Jonker’s poem ends with a line that refers to the apartheid government’s reprehensible pass law system. The pass
system was based on a statute that divided South Africa into urban and rural areas. The law regulated the movement
of black persons between the urban whites-only areas and the rural black areas. Black people were not allowed to
live in urban areas and they could only enter urban areas if they carried a pass, also called in Afrikaans a dompas or
‘dumb pass’. The pass was a document that authorised access to white urban areas for certain purposes, such as
work, during certain times of the day. If the police found a black person in an urban area without a pass, they would
often arrest and imprison him or her.
The pass laws were the source of the defiance campaign of 1952. This was the first large-scale multiracial civil
disobedience mobilisation against the apartheid laws. People deliberately refused to carry passes, publicly burning
them as an act of protest and demonstrating en masse against the government’s oppressive laws. This poem, too, is
an act of defiance or what is referred to as protest literature. The child, as a symbol of the future, defies the pass laws
of the apartheid government. In this way, the poem dreams of a time not only of the liberation of black people from the
draconian laws of apartheid, but the liberation of all the oppressed in the world.
Skills exercise 2.1
When South Africans travel to a foreign country, they are required to carry a passport and, in many cases, they must
obtain a visa to be allowed to enter that country. In general, people do not experience these requirements as insulting or
oppressive. How is this situation different from the apartheid government’s requirements in respect of the carrying of
passes? Have a class discussion on this question after you have done research on the apartheid pass law system.
Skills exercise 2.2
plagiarism: the representation of another’s work as your own
Conduct an Internet search on the events of 21 March 1960 in Sharpeville. Write a two-page essay on what happened
that day, what the political ramifications were for South Africa in its aftermath, and how it is remembered today in post-
apartheid South Africa. It is important that you write this essay in your own words – copying and pasting from Internet
sites or other electronic sources are prohibited as this practice constitutes plagiarism.5
2.2 Apartheid falls
On 24 May 1994, Nelson Mandela was inaugurated as South Africa’s first black president after
centuries of white rule. This event represents one of a long series of events that marked the final
demise of the apartheid legal order in South Africa. The then-president, F.W. de Klerk, had officially
set the wheels of this demise in motion four years earlier. In a landmark speech delivered at the
opening of parliament on 2 February 1990, he announced that the country had irrevocably been
placed ‘on the road of drastic change’6 and that ‘only a negotiated understanding among the
representative leaders of the entire population’7 could ensure peace in a South Africa that was, by
the time of his speech, on the brink of a full-scale civil war. In his speech, De Klerk went on to
unban the African National Congress (ANC) as well as other political movements that the
government had banned as part of its efforts to perpetuate apartheid. De Klerk also announced the
unconditional release of Nelson Mandela from prison. Less than 10 days later, on 11 February 1990,
Mandela was free for the first time in 27 years.
minute: in the context, this means an agreement or precise understanding between parties, most of the time recorded in
writing
After the February 1990 speech, the negotiations for a democratic South Africa officially began.
The Groote Schuur Minute of 4 May 1990 formed the starting point of these negotiations.8 In this
Minute, the National Party (NP) government and the ANC committed themselves to the resolution
of the climate of violence and intimidation in the country. The Minute also removed practical
obstacles to the negotiations, such as providing for indemnity from prosecution for returning exiles
as well as the release of other political prisoners.
In the Pretoria Minute that followed on 6 August 1990, the ANC formally suspended the armed
struggle against apartheid.9 The National Peace Accord, concluded on 14 September 1991, prepared
the way for the first Convention for a Democratic South Africa (CODESA), a formal round of
negotiations that started on 20 December 1991.10 CODESA took place at the World Trade Centre in
Kempton Park and 19 political groups from across the board were represented.
Figure 2.2 Mandela’s release from prison on 11 February 1990
Between the February 1990 speech and the opening of parliament at the beginning of 1992, the
NP, which at that point was still the ruling political party in government, lost three important by-
elections to the rightwing Conservative Party (CP).11 The latter was the official opposition party in
government and boycotted CODESA. Having won the three by-elections, the CP more forcefully
stated its argument that the NP did not have a mandate from the white electorate to negotiate a
transition to democratic rule with the ANC.12
by-election: an election that is held at a time or interval other than the time of the general election
electorate: the body of those people who have the right to vote in an election
referendum: the process of referring an important political question to decision by a general vote of the entire electorate
To test support among the white electorate for the transitional measures taken by the NP
government over the previous two years, De Klerk announced a national whites-only referendum
that was held on 17 March 1992.13 The question put to voters was this:
Do you support the continuation of the reform process that the state president began on 2 February 1990 and which is
aimed at a new constitution through negotiations?14
The result was a landslide victory for De Klerk and the NP with more than 68% of whites voting
‘yes’. On the outcome of the elections, De Klerk is quoted as having said: ‘Today we have closed
the book on apartheid.’15
Nevertheless, it still took more than two years for South Africa to reach the point of its first
democratic elections. By May 1992, CODESA’s crucial working group (Working Group 2), tasked
with considering constitutional principles and the functioning of a constitution-making body,16
reached a deadlock on the voting percentages that were required for a constitution-making body to
adopt a new constitution.17 The deadlock could not be broken and the ANC announced that it was
withdrawing from the negotiations.18 When the Boipatong massacre took place on 17 June 1992, the
ANC firmly restated its withdrawal from the negotiations.19 The ANC took this radical step because
it had reason to believe that the NP was, through police involvement, complicit in the massacre in
which 46 people were killed.
The breakdown in the negotiations as a result of the ongoing violence caught the attention of the
United Nations (UN) Security Council. It convened a special session on 2 August 1992 and adopted
Resolution 765 condemning the Boipatong massacre and calling for a special representative to be
sent to South Africa to monitor the situation.20 The UN delegation arrived later in August and
proceeded to play an important monitoring role that arguably also contributed to preventing the
violence from spiralling out of control in the months leading up to the conclusion of the
negotiations.
PAUSE FOR REFLECTION
On 16 May 1992, CODESA II ended in a deadlock as a result of the ANC and NP’s failure to agree on the form of an
interim government. In short, the NP wanted a government in which the minority would have an effective veto right in
certain cases against the majority. The dispute related to the majority that would be required for the adoption of the
final constitution. The NP wanted this percentage to be higher than that which it believed the ANC could secure. In
this way, the minority parties would effectively hold a veto over ANC decisions – the debate was whether a two-thirds
or a three-quarter majority should be required to adopt the new constitution. The negotiators could also not agree on
whether the powers of regional and local government should be entrenched in an interim constitution.21
The NP insisted that a 70% majority would be required in order to take decisions in the constitutional assembly. In
addition, on issues relating to the bill of rights, regions and the structure of government, it pressed for a 75% majority.
The ANC proposed a 66,7% or two-thirds majority on all constitutional issues. However, after consulting other
members of the Patriotic Front (PF), the ANC compromised and argued for a 70% majority for all decisions relating to
the constitution and 75% for the bill of rights. The NP rejected this compromise.22
On 17 June 1992, around 200 armed Zulu residents of the KwaMadala hostel, which was located at the Iscor
factory a few miles outside the Vaal Triangle township of Boipatong, set upon Boipatong and killed 46 people,
including nine children and two babies. The conflict also left 22 injured and hundreds of homes damaged and/or
looted.
At first, it appeared that the attack was a result of the ongoing tension between ANC supporters and Inkatha
Freedom Party (IFP) members. But ‘[v]ictims said they had been attacked by white men in security force uniform and
black men with red and white head bands speaking Zulu and chanting Zulu slogans.’23 At this point, with CODESA
still deadlocked, the ANC and other organisations began to allege that a ‘third force’ was behind these killings. In its
statement the ANC wrote: ‘The South African Police, led by their Minister, Hernus Kriel, and their Commissioner,
General van der Merwe, stand accused of complicity with the armed men who have committed one of the most
heinous crimes this country has seen.’24 The ANC believed that De Klerk and his government (through the security
police) were deploying a divide-and-rule strategy between ANC supporters and IFP members. On 23 June, the ANC
announced that it was breaking off all negotiations. Its statement opened with the following remarks, which clearly
indicate that the Boipatong massacre played a significant, if not decisive, role in its decision:
The National Party regime of FW de Klerk has brought our country to the brink of disaster. Riddled with corruption
and mismanagement, the regime is determined to block any advance to democracy. It pursues a strategy which
embraces negotiations, together with systematic covert actions, including murder, involving its security forces and
surrogates. This subversion of political processes to destroy the democratic movement in South Africa led by the
ANC cannot be allowed to prevail any longer. We cannot tolerate a situation where the regime’s control of state
power allows it the space to deny and cover up its role in fostering and fomenting violence. The Boipatong
massacre is one of the most chilling instances of the consequences of the actions of the FW De Klerk regime.
Before the people of South Africa and the bar of international opinion it cannot escape culpability.25
On 2 August, the UN adopted Resolution 765. It remains unclear what or who caused the attacks. Was a third force
indeed involved as the ANC alleged? De Klerk appointed the Goldstone Commission of Inquiry in 1991 to investigate
political violence and intimidation during the transitional process. It concluded that there was no evidence before it to
suggest that the police were involved in the attack.26 A marathon trial in 1993 during which the state called 120
Boipatong residents as witnesses also concluded that there was no evidence of police complicity in the events.27 The
subsequent report of the Truth and Reconciliation Commission of South Africa (TRC) found that the security forces
were complicit in the massacre.28
Skills exercise 2.3
Read the text of the United Nations Resolution 765 below. Write a summary of what you perceive to be the main themes
of the resolution in your own words.
Resolution 765 (1992) Adopted by the Security Council at its 3096th meeting, on 16 July 1992
The Security Council,
Recalling its resolutions 392 (1976), 473 (1980), 554 (1984) and 556 (1984),
Gravely concerned by the escalating violence in South Africa, which is causing a heavy loss of human life and by its
consequences for the peaceful negotiations aimed at creating a democratic, non-racial and united South Africa,
Concerned that the continuation of this situation would seriously jeopardize peace and security in the region,
Recalling the consensus Declaration on Apartheid and its Destructive Consequences in Southern Africa adopted by
the General Assembly at its sixteenth Special Session on 14 December 1989 which called for negotiations in South
Africa to take place in a climate free of violence,
Emphasizing the responsibility of the South African authorities to take all necessary measures to stop immediately
the violence and protect the life and property of all South Africans,
Emphasizing also the need for all parties to cooperate in combating violence and to exercise restraint,
Concerned at the break in the negotiating process and determined to help the people of South Africa in their
legitimate struggle for a non-racial democratic society,
1. Condemns the escalating violence in South Africa and in particular the massacre at Boipatong township on 17
June 1992, as well as subsequent incidents of violence including the shooting of unarmed protesters;
2. Strongly urges the South African authorities to take immediate measures to bring an effective end to the ongoing
violence and to bring those responsible to justice;
3. Calls upon all the parties to cooperate in combating violence and to ensure the effective implementation of the
National Peace Accord;
4. Invites the Secretary-General to appoint, as a matter of urgency, a Special Representative in order to
recommend, after, inter alia, discussion with the parties, measures which would assist in bringing an effective end
to the violence and in creating conditions for negotiations leading towards a peaceful transition to a democratic,
non-racial and united South Africa, and to submit a report to the Security Council as early as possible;
5. Urges all parties to cooperate with the Special Representative of the Secretary-General in carrying out his
mandate, and to remove the obstacles to the resumption of negotiations;
6. Underlines, in this regard, the importance of all parties cooperating in the resumption of the negotiating process
as speedily as possible;
7. Urges the international community to maintain the existing measures imposed by the Security Council for the
purpose of bringing an early end to apartheid in South Africa;
8. Decides to remain seized of the matter until a democratic, non-racial and united South Africa is established.29
Despite these efforts, another massacre occurred in Bisho on 7 September 1992.30 Twenty-nine
people were killed. This time, however, instead of increasing the tensions and stifling the possibility
of resuming the negotiations, the ANC and the NP returned to the negotiation table.31 On 26
September 1992, a record of understanding was agreed between the ANC and the government.32
The agreement restarted the negotiations in the form of the Multiparty Negotiation Forum (MPNF)
which gathered for the first time on 1 April 1993.33
While it now appeared that South Africa was back on the road towards democracy, the
assassination of Chris Hani, secretary general of the South African Communist Party (SACP) and a
senior ANC leader, on 10 April 1993, brought the country to the brink of a race war.34 Two right-
wing supporters, Clive Derby-Lewis and Janusz Walu´s, were arrested for Hani’s murder after an
eyewitness, who happened to be a white Afrikaner woman, came forward.35 Nelson Mandela
reacted immediately after Hani’s death, addressing the whole nation with an impassioned plea for
calm:
Tonight I am reaching out to every single South African, black and white, from the very depths of my being. A white
man, full of prejudice and hate, came to our country and committed a deed so foul that our whole nation now teeters on
the brink of disaster. A white woman, of Afrikaner origin, risked her life so that we may know, and bring to justice, this
assassin. The cold-blooded murder of Chris Hani has sent shock waves throughout the country and the world. […] Now
is the time for all South Africans to stand together against those who, from any quarter, wish to destroy what Chris Hani
gave his life for – the freedom of all of us.36
bargaining power: the relative abilities of negotiating parties to influence one another
Across the racial divide, leaders echoed Mandela’s call for calm.37 Ultimately, these efforts ensured
that the negotiations were not derailed yet again and, indeed, intensified. It is said that the
exemplary way in which Mandela handled the Hani assassination caused a crucial shift in
bargaining power in favour of Mandela and the ANC in the negotiations.38
Yet, the assassination of Chris Hani was not the last dramatic obstacle in South Africa’s path to
democracy. On 25 June 1993, approximately 3 000 members of paramilitary right-wing groups, led
by the Afrikaner Weerstandsbeweging (AWB), stormed the World Trade Centre at Kempton Park
where the MPNF was meeting.39 They broke through the glass front of the Centre with an armoured
car and briefly took control of the negotiation chamber. After protracted negotiations it was agreed
that no arrests would be made at the World Trade Centre that day and that the AWB supporters
would leave peacefully.40 A number of arrests followed later and the Goldstone Commission
condemned the attack and welcomed the arrests.41
The apartheid parliament finally enacted the interim Constitution42 into law on 18 November
1993.43 The date for the first non-racial general election was set for 27 April 1994, which was also
the date when the interim Constitution would come into effect. The ANC won the election with a
majority of just over 62% and Mandela became the first democratically elected president of South
Africa44 with De Klerk and Thabo Mbeki as his deputies. It was at the first meeting of the new,
democratically elected parliament that Mandela delivered the speech with which this chapter begins.
Skills exercise 2.4
Read and reflect on the preamble and table of contents of the interim Constitution below and answer the questions that
follow.
Constitution of the Republic of South Africa Act 200 of 1993
Contents
Chapter 1: Constituent and Formal Provisions
Chapter 2: Citizenship and Franchise
Chapter 3: Fundamental Rights
Chapter 4: Parliament
Chapter 5: The Adoption of the new Constitution
Chapter 6: The National Executive
Chapter 7: The Judicial Authority and the Administration of Justice
Chapter 8: The Public Protector, Human Rights Commission, Commission on Gender Equality and
Restitution of Land Rights
Chapter 9: Provincial Government
Chapter 10: Local Government
Chapter 11: Traditional Authorities
Chapter A Volkstaat Council
11A:
Chapter 12: Finance
Chapter 13: Public Service Commission and Public Service
Chapter 14: Police and Defence
Chapter 15: General and Transitional Provisions
Preamble
In humble submission to Almighty God,
We, the people of South Africa declare that–
WHEREAS there is a need to create a new order in which all South Africans will be entitled to a common South African
citizenship in a sovereign and democratic constitutional state in which there is equality between men and women and people of
all races so that all citizens shall be able to enjoy and exercise their fundamental rights and freedoms;
AND WHEREAS in order to secure the achievement of this goal, elected representatives of all the people of South Africa
should be mandated to adopt a new Constitution in accordance with a solemn pact recorded as Constitutional Principles;
AND WHEREAS it is necessary for such purposes that provision should be made for the promotion of national unity
and the restructuring and continued governance of South Africa while an elected Constitutional Assembly draws up a
final Constitution;
NOW THEREFORE the following provisions are adopted as the Constitution of the Republic of South Africa.
1. What are the three central values of the post-apartheid legal order?
2. In which chapter of the interim Constitution will you find the Bill of Rights?
3. Which chapter of the interim Constitution applies to the administration of the courts?
4. Which chapter of the interim Constitution deals with the right to vote?
2.3 From an interim to a final Constitution
constitutional principles: in the context, these were the 34 principles contained in Schedule 4 to the interim
Constitution and which formed the basis for the text of the final Constitution
In terms of sections 68 and 71 of the interim Constitution, the new government, in its capacity as the
Constitutional Assembly, was tasked with drafting and adopting a final Constitution that would
comply with 34 predetermined constitutional principles that were contained in Schedule 4 to the
interim Constitution.
THINKING LIKE A LAWYER
Why do you think it is significant to state that the new government was tasked with drafting and adopting a final
Constitution ‘in terms of sections 68 and 71’? Why is it significant to cite the provisions of the interim Constitution in
this way? What does it tell you about the nature of the obligation resting on the new government?
As Currie and De Waal write: ‘[T]he 34 Constitutional Principles were a framework for the creation
of a democratic state with a supreme constitution in which the fundamental rights and freedoms of
all citizens are protected.’45 Section 71(2) of the interim Constitution also provided that the final
Constitution would only have force and effect once the Constitutional Court had certified that the
proposed text complied with the 34 principles.
Skills exercise 2.5
Find the text of the 34 constitutional principles on the Constitutional Court’s website
(www.constitutionalcourt.org.za). Section 8 of the interim Constitution provides as follows:
8. Equality
1. Every person shall have the right to equality before the law and to equal protection of the law.
2. No person shall be unfairly discriminated against, directly or indirectly, and, without derogating from the generality
of this provision, on one or more of the following grounds in particular: race, gender, sex, ethnic or social origin,
colour, sexual orientation, age, disability, religion, conscience, belief, culture or language.
Write down the constitutional principle that you think formed the basis of this section of the interim Constitution.
The 1996 Constitution, or the final Constitution,46 represents the end of what Currie and De Waal
refer to as ‘South Africa’s negotiated revolution’.47 On 8 May 1996, the Constitutional Assembly
adopted a final version of the text and submitted it to the Constitutional Court for certification.48
Certification was the process in terms of which the Constitutional Court ‘measured’ the proposed
text of the new constitution against the 34 principles and decided whether it conformed to these
principles or not. However, the Constitutional Court declined to certify the text submitted to it,
concluding that the proposed final text, while being a ‘monumental achievement’, did not fully
comply with the requirements of the 34 principles.49
The Constitutional Assembly then reconvened and made a number of changes to bring the text in
line with the Constitutional Court’s decision. On 11 October 1996, the Assembly adopted an
amended version of the final text and referred it to the Constitutional Court for certification.50 This
time the Court concluded that the text complied with the constitutional principles.51 President
Mandela signed the text into law on 10 December 1996 at Sharpeville and it came into effect on 4
February 1997.52 The post-apartheid legal order had finally become a fully fledged reality.
Skills exercise 2.6
Read the preamble and section 1 of the Citation of Constitutional Laws Act53 below. Explain why the legislature
considered it necessary that the final Constitution be cited in a different way from other acts of parliament.
Preamble
WHEREAS section 2 of the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996), provides that
the Constitution is the supreme law of the Republic of South Africa;
AND WHEREAS the Constitution, unlike other Acts of the Republic of South Africa, was not passed by Parliament,
but was adopted by the Constitutional Assembly;
AND RECOGNISING that the Constitution and amendments to the Constitution should be treated differently from
other Acts of Parliament by not being allocated an Act number like other ordinary Acts of Parliament,
BE IT THEREFORE ENACTED by the Parliament of the Republic of South Africa, as follows:–
1. No Act number to be associated with Constitution of the Republic of South Africa, 1996
(1) From the date of commencement of this Act, no Act number is to be associated with the ‘Constitution of the
Republic of South Africa, 1996 (Act No. 108 of 1996)’.
2.4 The apartheid state and the significance of the final Constitution
2.4.1 The parliamentary sovereignty of the apartheid state
To have a better understanding of the significance of the Constitution, it is necessary to understand
something about the nature and essence of apartheid. Apartheid was not just the ‘name given to the
segregation of the inhabitants of European descent from the non-European’54 in South Africa, or
rather, apartheid was not simply a system of racial segregation. To make this point clear, we will
briefly revisit the central policies and practices of the apartheid state and, in particular, the operation
of the notion of parliamentary sovereignty in South Africa.
REFRAMING
What would you do if the Senate (the highest decision-making body) of the university at which you are currently
studying adopted a policy that forbade the wearing of headscarves by Muslim females? Imagine that a petition signed
by thousands of students is presented to the Senate. Their response is simply: It is within our power to do this. We
are not subject to any external authority. Assuming that there was no Constitution to which one could appeal, what
could the students do?
Sarkin points out that prior to the 1994 elections when the interim Constitution came into force,
there had been three previous constitutions in South Africa, respectively adopted in 1910, 1961 and
1983.55 He explains that ‘these constitutions took little account of the multi-ethnic, multi-lingual
and multicultural nature of South African society. Indeed, they catered almost exclusively for the
white, Christian, Afrikaans, patriarchal minority.’56 He then mentions some of the central policies
and practices of the apartheid state, namely land dispossession, linguistic and cultural
marginalisation, gross human rights violations and the state’s denial to the majority of access to a
large variety of amenities, institutions and opportunities, including many forms of employment.57
Sarkin concludes:
disenfranchised: deprived of the right to vote
The South African state systematically violated the rights of black people and subjected them to socio-economic
deprivation. Black South Africans were disenfranchised and many were forcibly removed from where they lived and had
their citizenship removed.58
It should thus be clear that apartheid was far more than a system of mere racial segregation – it was,
in fact, a system of racist exploitation.
Skills exercise 2.7
Look up the words ‘segregation’ and ‘exploitation’ in a dictionary. Explain your understanding of the difference between
the two.
parliamentary sovereignty: the supreme controlling power to make and enforce decisions in the form of legislation is
exclusively vested in an elected parliament
Many of the apartheid government’s oppressive policies and practices were made possible by the
fact that the three earlier constitutions entrenched the principle of parliamentary sovereignty.
Dicey defines parliamentary sovereignty as follows:
Parliament means, in the mouth of a lawyer (though the word has often a different sense in conversation) the King, the
House of Lords, and the House of Commons: these three bodies acting together may be aptly described as the ‘King in
Parliament’, and constitute Parliament. The principle of parliamentary sovereignty means neither more nor less than
this, namely that Parliament thus defined has, under the English constitution, the right to make or unmake any law
whatever: and, further, that no person or body is recognised by the law of England as having a right to override or set
aside the legislation of Parliament.59
As is clear from the above definition, Dicey defines parliamentary sovereignty with reference to the
British Westminster system of government.60 In the context of the apartheid government,
parliamentary sovereignty carries more or less the same definition since South Africa inherited the
Westminster system as a result of former English colonial rule. In essence, parliamentary
sovereignty means that the supreme controlling power (sovereignty) to make and enforce decisions
in the form of legislation, in relation to the body politic or the citizenry in a particular territory, is
exclusively vested in an elected parliament.61 Strictly speaking, this means that a court cannot
declare invalid the laws made by a properly constituted parliament. In principle, this may not be
problematic. However, when a parliament, constituted by a minority in the territory as was the case
in South Africa, uses its sovereignty to entrench the violation of human rights, it becomes a vehicle
for oppression and injustice. Van der Vyver notes that the British parliament, ‘which conducted
itself with such distinction on the domestic front’,62 underwent a complete metamorphosis when it
came to matters affecting the colonies – it did whatever was necessary to establish a legal
framework for ‘the exploitation of the colonial resources to enrich the motherland’.63
Clearly, parliamentary sovereignty in South Africa originated from and for the benefit of colonial
power. When Britain won the Anglo-Boer War in 1902, it concluded the Peace of Vereeniging in
terms of which South Africa would consist of four British colonies: the Cape, Transvaal, Orange
River and Natal.64 In 1909, the colonies were unified into the Union of South Africa – initially, a
self-governing dominion65 of the British Empire. As Van der Vyer points out:
When the Union of South Africa was founded in 1910, the constitutional structure of the new state was modelled on the
British system and included in principle a sovereign legislature..66
legitimacy: the moral justification for the exercise of power
constituency: the citizens who live in the governed area
This sovereign parliament, however, lacked the most basic feature on which a parliament’s
legitimacy hinges, namely democratic representation.67 The sovereign parliament of South Africa
represented only a small minority of South Africans, founded on the interests of its ‘privileged
White constituency’.68 When, as a result of criticism of its apartheid policies, South Africa left the
British Commonwealth in 1960 and founded the Republic of South Africa under the leadership of
H.F. Verwoerd, it retained the system of parliamentary sovereignty.69 This retention allowed it to
enact apartheid laws in unbridled fashion. The only basis on which a court could declare a particular
statute of parliament invalid was on grounds of incorrect legislative procedure.
THINKING LIKE A LAWYER
What do you think is the key difference between challenging a particular law on the basis of ‘incorrect legislative
procedure’ as opposed to challenging it on ‘substantive grounds’? What should one understand by ‘legislative
procedure’?
To illustrate how insidiously parliamentary sovereignty was manipulated in favour of apartheid
South Africa, it is worth considering an incident that occurred just as the NP came to power in 1948.
At this time, coloured people in the province of the Cape of Good Hope were still allowed to vote.
Section 35 of the Union Constitution70 provided that parliament could not pass a statute taking away
the coloured vote unless such a statute is passed with a two-thirds majority during a joint sitting of
both houses of parliament (Senate and House of Assembly).71 The NP attempted effectively to
repeal section 35 by introducing the Separate Representation of Voters Act.72 This Act was passed
by an ordinary majority in both houses of parliament, sitting separately.73
In the cases of Harris v Minister of the Interior74 and Minister of the Interior v Harris,75 the
Appellate Division (the highest court in South Africa at the time), declared that parliament had
followed an unconstitutional procedure in its attempts to adopt the Act, that the requisite majorities
had not been met and that the Act was therefore invalid.
Parliament then passed a series of statutes in an attempt to ensure that ‘the Government could
command a two-thirds majority in joint session of both houses of Parliament’.76 In Collins v
Minister of the Interior,77 the Appellate Division upheld the Senate Act.78 By means of this statute,
the government secured the requisite majority in a joint sitting. Although the Senate Act was clearly
enacted to clear the way for the disenfranchisement of coloured people in the Cape, the majority
judgment held that as long as the statute was passed in accordance with parliament’s procedures, the
motive for which it was passed was of no consequence to its validity.79
2.4.2 Constitutional sovereignty and the rule of law
constitutional sovereignty: the constitution is sovereign and any law or conduct that is inconsistent with it is invalid
customary law: law based on cultural tradition
common law: the law that was not made by parliament, but rather developed in the courts through the precedent
system
The interim Constitution brought the destructive reign of parliamentary sovereignty vested in a
minority parliament in South Africa to a close. In South Africa today, the Constitution is sovereign.
The notion of constitutional sovereignty is inextricably intertwined with the rule of law (or the
principle of legality). Essentially, constitutional sovereignty means that any law or conduct that is
inconsistent with the Constitution is invalid.80 This means that when parliament, as the main
legislative body in the country, enacts legislation that is found to be inconsistent with the
Constitution, such legislation will be declared invalid. In addition, any conduct by government,
institutions and individuals that is found to be inconsistent with the Constitution is invalid. For
instance, in the case of S v Makwanyane,81 the Constitutional Court abolished the law that
authorised the death penalty as punishment for murder because it was found to be inconsistent with
constitutional values and provisions. As for the customary law82 and the common law,83
constitutional sovereignty means that any rule or provision of the customary law or common law
that is inconsistent with the Constitution is invalid. The Constitutional Court, the Supreme Court of
Appeal (SCA) and the High Courts have an inherent power to develop the common law.84 Any
development of the common law ‘must promote the spirit, purport and objects of the Bill of
Rights’.85 We discuss the role of the courts and the common and customary law as sources of South
African law further in chapters 5 and 8.
rule of law: the same law applies equally to everyone, including the state
The rule of law essentially conveys the notion that the same law applies equally to everyone. In
other words, where the rule of law prevails, no one is above the law. It also means that all state
conduct must be in accordance with and sanctioned by the law – lawless conduct by the state must
be sanctioned in the same way in which citizens who act lawlessly face sanction. Fuller formulates
eight characteristics of the rule of law. They are helpful in developing our understanding of the rule
of law and are as follows:
1. Laws must be expressed in general terms and must be general in scope and application (as
opposed to decisions on a purely ad hoc basis).
2. Laws must be publicly promulgated.
3. Laws must be prospective in effect (meaning that laws must be promulgated in advance of the
commencement of their application).
4. Laws must be expressed in understandable terms (meaning that the terms in which they are
expressed should be as clear as possible).
5. Laws should be consistent, in other words they should not, as far as possible, contradict each
other.
6. Laws should not require conduct that is beyond the powers of those who are affected by the laws
(meaning that the conduct that the rules require must be possible).
7. Laws should be relatively stable – they cannot be changed so frequently that the subject cannot
rely on them.
8. There must be congruence between the wording of the laws and their administration or practical
application – official conduct must be in accordance with the laws’ wording.86
You will notice that these characteristics of the rule of law say nothing about the substance of the
laws. These requirements are, in essence, a set of procedural guidelines for the enactment of laws.87
Fuller insists, nevertheless, that these characteristics generate what he calls the morality that makes
law possible or an ‘inner morality of law’.88 It is true that, as a matter of logic, it does not follow
that laws that conform to the inner morality as set out above will also be good laws substantively
speaking. Yet, there are many examples from history where the suspension of the rule of law
coincided with the emergence of evil legal systems. The most prominent example is probably that of
Hitler’s rise to power in Nazi Germany.
In 1933, Hitler persuaded the German president, Von Hindenburg, to issue the Decree for the
Protection of the People and the State. This Decree suspended those articles of the German
Constitution that protected civil liberties, such as freedom of association and expression, including
free speech, freedom of assembly and freedom of the press.89 As Agamben notes, this effectively
amounted to a suspension of the rule of law. Thus, Hitler’s entire reign in Germany occurred under a
state of exception – a suspension of the rule of law. Hitler needed to suspend the rule of law to
ensure that he could make arbitrary laws with which he could further his programme of total Jewish
extermination. Obviously, this programme was based on treating different categories of persons
differently to make it ‘legally’ possible to oppress and kill the Jews and thus could not be ‘legally’
executed under the rule of law with its commitment to generality and the requirement that the same
law should apply to everyone.
The above example illustrates the vital importance of the rule of law for any legal order that is
committed to a culture of human rights. Section 9(1) of the Constitution expresses the rule of law as
equality before the law of ‘everyone’, as well as ‘the right to equal protection and benefit of the
law’. This is often referred to as the formal component of equality. When contrasted with the
apartheid legal order, the rule of law means that where there is a deviation from equal benefit and
protection of the law, that deviation cannot be arbitrary and must be justified by, or be in terms of,
the Constitution.
THINKING LIKE A LAWYER
Think about what it means to say that the deviation must be justified by, or in terms of, the Constitution. In practical
terms, what does this mean?
The Constitution does, however, go on to recognise that as a result of unfair discrimination in the
past, there exist vast inequalities in South African society. Section 9(2) thus provides that ‘to
promote the achievement of equality’, legislative and other measures can be taken to protect or
advance those against whom unfair discrimination was exercised in the past. This section provides
for substantive equality – it justifies restitutional equality, including, for example, affirmative action
in employment. Currie and De Waal make the point that affirmative action does not constitute a
limitation of the right to equality, but rather forms an integral part of that right. It is ‘a means of
achieving equality understood in its substantive or restitutionary sense’.90 In addition, it is too
simplistic to view provision for substantive equality simply as a derivation from the rule of law
principle of formal equality because such a view loses sight of the reality that there are countless
examples of law that are, for good reason, applicable only to certain categories of persons. We can
think here of the law in relation to minors, the law regarding insolvents and so forth. As Jones
points out:
The perfection of formal equality is an abstraction that practical justice blows away, as it always has and must. The
attainable ideal is that all laws should apply equally to all human beings unless there is good reason to the contrary.91
Skills exercise 2.8
1. Find the case of President of the Republic of South Africa v Hugo 1997 (4) SA 1 (CC); 1997 (6) BCLR 708 (CC)92 on
the Constitutional Court’s website (www.constitutionalcourt.org.za). Note that finding cases on the website is an
interim strategy and you will later learn how to find cases using authoritative legal sources of information after working
through chapter 12.
2. Read the first two paragraphs of the judgment. On what basis did the respondent in the case claim that he was being
unfairly discriminated against? Is this basis one of the prohibited grounds of discrimination in section 9(3) of the
Constitution?
3. Now read paragraph 41 of Goldstone J’s judgment, bearing in mind that he is discussing the provisions of the interim
Constitution. What does he say about the purpose of the equality clause in the interim Constitution? What is the
impact of the implications of this purpose on what the appellants were required to prove in this case?93
2.4.3 Liberal democracy, the separation of powers and the countermajoritarian
dilemma
As the Court of final instance, the Constitutional Court is the final arbiter in the determination of
whether a law or conduct is inconsistent with the Constitution and therefore invalid.94 This means
that the Constitutional Court and, indeed, the entire judiciary, play a crucial role in upholding
constitutional sovereignty. However, the question arises why unelected judges95 should have the
power to declare unconstitutional decisions of a democratically elected government. This is known
as the countermajoritarian dilemma and can also usefully be formulated as the tension between
human rights and democracy where democracy is understood in the strict sense of majoritarian
rule.96
The answer to this question goes to the heart of the meaning of constitutional democracy in the
South African context. In its simplest form, a constitution regulates the governmental power of the
state in one way or another. As Currie and De Waal write:
The fundamental problem that is addressed by the writing of a constitution is to establish a government with enough
power to govern but, at the same time, to structure and control that power so as to prevent it being used oppressively.97
REFRAMING
Think about the various ways in which you have been subject to rules at different times in your life. Who made the
rules, who enforced the rules and who made the decision when there was disagreement about the meaning of the
rules? Discuss with your peers the different ‘models’ for rules you may have experienced in your family, in your school
career or in other institutions.
liberal democracy: a democracy in which the rule of the majority is limited
The idea that a government should have limited power in relation to its subjects is a central tenet of
what is called liberal democracy. When we add the adjective ‘liberal’ to describe a democracy, it
signifies that the democracy in question does not simply comprise unconstrained majority rule, but
rather that the rule of the majority occurs ‘within certain predetermined channels, according to
certain prearranged procedures’98 as they are contained in a constitution. Human rights entrenched
in a bill of rights, as is the case in the South African Constitution, represent precisely the idea that
subjects have certain claims against the state, regardless of whether they are the claims or represent
the interests of a majority of the population or that of a minority.
For instance, section 10 of our Constitution provides that ‘[e]veryone has inherent dignity and the
right to have their dignity respected and protected’. Clearly, this right is held by every individual in
South Africa, regardless of whether they are part of the majority or not. The right represents a claim
against the state99 – it is constrained to exercise its power in such a way that dignity is not violated.
In addition, where the right to dignity is limited, even if it were sanctioned by the majority, such
limitation must be reasonable and justifiable with reference to the procedure and values described in
section 36 of the Constitution (the limitation clause).
separation of powers: a system where governmental power is divided among the three branches of government,
namely the legislature, the executive and the judiciary
In South Africa, the liberal elements of our democracy imply further that governmental power, as
determined and demarcated by the Constitution, is divided among the three branches of government,
namely the legislature (parliament), the executive (the president and cabinet) and the judiciary (the
courts). This is known as the trias politica or separation of powers. It follows from the very fact
that the Constitution is the supreme law that the judiciary is a necessary part of government –
constitutional sovereignty would not mean much if a court could not pronounce on the Constitution
and could not enforce it.100 To adjudicate a dispute properly as regards the constitutionality of laws
or conduct, it is vital that the judiciary is not only recognised as a branch of government, but also
that it is impartial and independent.101 The rule of law implies that the legislature and/or the
executive cannot be a judge in its own case. Liberal constitutional democracy is thus strengthened
by the existence of an independent judiciary.102
As regards the separation of powers, the former Chief Justice Pius Langa writes as follows:
What is acknowledged is that the three branches of government perform separate functions. All three, separately,
exercise governmental authority. The objective is to secure the freedom of every citizen by seeking to avoid an excessive
concentration of power, which can lead to abuse, in one person or body.103
The Constitutional Court emphasised in the first certification judgment that no system of separation
of powers is absolute and that there is no universal system of separation of powers.104 As the Court
held:
The principle of separation of powers, on the one hand, recognises the functional independence of branches of
government. On the other hand, the principle of checks and balances focuses on the desirability of ensuring that the
constitutional order, as a totality, prevents the branches of government from usurping power from one another. In this
sense it anticipates the necessary or unavoidable intrusion of one branch on the terrain of another. No constitutional
scheme can reflect a complete separation of powers: the scheme is always one of partial separation.105
For this reason, the Court concluded that the separation of powers is not undermined by the fact that
members of cabinet are also members of the legislature. In fact, held the Court, this arrangement
makes the executive ‘more directly answerable to the elected legislature’.106 While the importance
of the separation of powers cannot be overemphasised, it is also important, as Ackermann J pointed
out in De Lange v Smuts NO,107 not to diffuse power so completely that the government is unable to
take timely measures in the public interest.108 Furthermore, as the Court held in Bernstein v Bester
NO,109 the right of access to courts is an important part of the independence of the judiciary and
therefore an aspect of the separation of powers. In this case, the Court also warned that legislation
that seeks to bring the courts under the control of the legislature or the executive could be struck
down under the separation of powers doctrine even if no particular provision of the Constitution is
directly violated.110
Skills exercise 2.9
In the above quotation, the Court links ‘the principle of checks and balances’ with the prevention of the abuse of power in
the branches of government. How do you think the principle of checks and balances applies to the judiciary as a branch
of government? Read Chapter 8 of the Constitution and list at least three ways in which the principle applies.
In the end, the separation of powers requires a careful balancing of state power. This balancing is
crucial for the legitimacy of government and the stability of the country which is crucial for its
socio-economic development. As former Chief Justice Langa writes:
There is no doubt that the proper balancing of government power and the transparency this entails enhances the
accountability of government and its three branches and accordingly contributes to the stability of government thus
yielding direct economic benefits for the country.111
THINKING LIKE A LAWYER
What do you think the reference to ‘balancing’ means in the paragraph above? It is used in an abstract sense, but has
important practical implications. Discuss what the proper ‘balancing’ of government power might mean in terms of
how laws are drafted, enforced and adjudicated in your class.
2.5 Transformative constitutionalism and transitional justice
2.5.1 The historic bridge
justiciable: a matter that is capable of being decided by a court
The previous section alluded to the liberal elements of the South African democracy. It would,
however, be a mistake to equate our democracy with a purely liberal one. This is the case because
our democracy contains elements that are not ordinarily part of a purely liberal order. Our
Constitution, for instance, protects socio-economic rights and, as part of that protection, it makes
those rights justiciable. As is clear from the previous section, our Constitution also provides for
measures aimed at the achievement of substantive equality, one of these measures being affirmative
action in employment. These provisions of the Constitution should be understood in the context of
its preamble which opens with the following words:
We, the people of South Africa,
Recognise the injustices of our past;
[…]
We therefore, through our freely elected representatives, adopt this Constitution as the supreme law of the Republic so as
to–
Heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human
rights.
The Constitution thus also sets for itself the task of addressing the social and economic injustices of
the past. In this significant respect, South Africa has a transformative constitution.
In its epilogue, the interim Constitution described itself as a:
historic bridge between the past of a deeply divided society […] and a future founded on the recognition of human
rights, democracy, and peaceful co-existence and development opportunities for all South Africans […]
[…] there is a need for understanding but not for vengeance, a need for reparation but not for retaliation, a need for
ubuntu but not for victimisation.
In order to advance such reconciliation and reconstruction, amnesty shall be granted in respect of acts, omissions and
offences associated with political objectives and committed in the course of the conflicts of the past.
Skills exercise 2.10
You are appointed as a researcher for a new dictionary of post-apartheid legal terminology. You are required to research
the meaning of ubuntu and to formulate a definition for the new dictionary. Write down your definition and discuss it with
fellow students and your lecturer.
COUNTER POINT
The inclusion of justiciable socio-economic rights in the Constitution was hotly debated at the time of its drafting.
Brand and Heyns indicate that the debate centred around the impact that the inclusion of these rights would have on
the legitimacy of the Constitution. Those who argued in favour of the inclusion of these rights pointed out that ‘it
makes little sense to tell people that their civil and political rights will be protected, if they continue to be at the mercy
of the elements and of social exploitation.’112 This view argued that the inclusion of socio-economic rights would
increase the Constitution’s legitimacy.
Those on the other side of the debate argued that it would be equally detrimental to the Constitution’s legitimacy if it
promised too much. The argument was that rights create obligations and that ‘the Constitution would lose its
credibility if it told people they have rights in respect of which the state cannot deliver, due to a lack of resources.’113
Eventually, it was decided that socio-economic rights would be included as justiciable rights in the Constitution and
that while the rights would be formulated in such a way that they would recognise the limited availability of the state’s
resources, they would nevertheless emphasise that these rights must be progressively realised. In addition, the South
African Human Rights Commission (SAHRC) would be given a special mandate to monitor the realisation of these
rights.
2.5.2 Amnesty and the Truth and Reconciliation Commission (TRC)
amnesty: an undertaking not to prosecute someone for acts that would under normal circumstances constitute crimes
The interim Constitution set the scene for the creation of the South African Truth and Reconciliation
Commission (TRC). The TRC was created in 1995 in terms of an act of parliament entitled the
Promotion of National Unity and Reconciliation Act.114 The purpose of the TRC was stated in the
long title of the Act: ‘[t]o provide for the investigation and the establishment of as complete a
picture as possible of the nature, causes and extent of gross violations of human rights’ that
emanated ‘from the conflicts of the past’. The long title went on to state that the TRC would
facilitate an amnesty process. In terms of this process, persons who came forward and fully
disclosed acts that they had committed with a political objective ‘in the course of the conflicts of the
past’ would be granted amnesty. This meant that they would not be prosecuted for acts that would
ordinarily constitute crimes. In addition, a person who was granted amnesty could not be sued by
another person for compensation for damages as a result of the act committed with a political
objective.
Why was there a need for amnesty to be granted to people who had committed politically
motivated crimes during the apartheid era? Does amnesty not precisely violate the principle of the
rule of law which the interim Constitution inaugurated? Does it not mean that a general law does
not, in fact, apply? As we have seen from the discussion above, apart from the fact that the rule of
law allows for exceptions that are rationally motivated and justified, the answers to these questions
go to the heart of South Africa’s transition to democracy.
Van Zyl points out that in South Africa, the liberation movement failed to remove the apartheid
government from office through military means, primarily because the apartheid government
continued to control a considerable police and military force right up until political power was
officially handed over.115 Yet, the balance of power in the country did not exclusively vest in the
apartheid government – by the late 1980s, the liberation movement enjoyed the support of an
overwhelming majority of South Africans and of the international community. Therefore, South
Africa was severely isolated internationally with various forms of sanctions and boycotts imposed
on it. The detrimental effect of this isolation on the country placed the government under great
pressure to change its policies dramatically.116 As a result of this situation, the major parties to the
conflict realised by the late 1980s that South Africa had arrived at ‘an impasse that only
negotiations could resolve’.117
Skills exercise 2.11
You are required to prepare a short report for a local newspaper on the role of the UN in the resistance against apartheid.
Assume that readers will not necessarily know what the UN and the concept ‘apartheid’ are. Your report should be as
explanatory as possible. Read sections 12.3.1 and 12.3.2 of chapter 12 to assist you in finding scholarly books and
articles on this topic.
As Van Zyl puts it:
The government understood that it could no longer ignore or repress the massive domestic resistance to its rule, nor
could it indefinitely defy world opinion or weather international isolation. The liberation movements [on the other hand]
recognised that even if they continued their military campaign against the former government, they were unlikely to
win.118
On the one hand, amnesty became a crucial device in the transition because without the guarantee
that it would not automatically face prosecution by a new order, the apartheid government and its
security forces would never have allowed the transition to democracy.119 On the other hand, the
amnesty that was eventually agreed on ensured that the old order would not be able to grant itself a
blanket amnesty – the TRC was an instrument of the new order and could only grant amnesty to
those who committed crimes with a political motive and who were willing to disclose details about
their crimes.120 Furthermore, the dysfunctionality of the criminal justice system in South Africa
made traditional criminal prosecution impractical. As Van Zyl indicates, the criminal justice system
struggles to cope with the enormous problem of current crime. If the police and prosecuting
authorities were to devote a significant portion of their resources that the investigation of past
apartheid crimes would undoubtedly require, ‘the country would almost certainly lose the current
battle against ongoing crime’.121
Skills exercise 2.12
Having regard to scholarly articles and books, investigate and provide examples of truth and reconciliation bodies
elsewhere in the world. List the objectives of at least two of these bodies. To what extent do they correspond?
Azanian Peoples Organization (Azapo) v President of the Republic of South Africa
Despite all the factors in favour of amnesty, the agreed TRC dispensation was still severely criticised and indeed
challenged in the Constitutional Court in the case of Azanian Peoples Organization (AZAPO) v President of the
Republic of South Africa.122
In this case, the applicants argued that ‘various agents of the state […] unlawfully murdered and maimed leading
activists during the conflict against the racial policies of the previous administration’ and that they, the victims of
these acts, had ‘a clear right to insist that such wrongdoers’ be properly prosecuted and punished; that they ‘should
be ordered by the ordinary courts of the land to pay adequate civil compensation to the victims or dependants of the
victims and further to require the state to make good to such victims or dependants the serious losses which they
have suffered in consequence of the criminal and delictual acts of the employees of the state.’123
The applicants contended further that the amnesty provisions in section 20(7) of the TRC Act unjustifiably violated
their constitutional right of access to the courts, as was provided for in section 22 of the interim Constitution.
The Constitutional Court reasoned that while section 20(7), which granted full criminal and civil immunity to a
successful amnesty applicant, constituted a violation of the section 22 right, such violation was permitted or
authorised by the interim Constitution itself where it states in the epilogue that ‘amnesty shall be granted’ and that
‘Parliament under this Constitution shall adopt a law […] providing for the mechanisms, criteria and procedures,
including tribunals, if any, through which such amnesty shall be dealt with’. The Court reasoned that without a far-
reaching amnesty as contained in section 20(7), there would be nothing to encourage perpetrators to come forward
to disclose the truth about their deeds. This would mean that ‘victims of repression’ would be denied the opportunity
of learning the truth that they ‘seek so desperately to know’.124 As a consequence, the Court held that section 20(7)
of the TRC Act was not open to constitutional attack.
THINKING LIKE A LAWYER
How can a law both ‘violate’ and be allowed by the Constitution? How does this link up with the concept of ‘balancing’
introduced earlier in this chapter? Think about how the Constitutional Court justified its decision in this case. Which
forms of legal authority featured? What factors or considerations did the Court associate with the forms of legal
authority it used?
Skills exercise 2.13
Find the Azapo case on the Constitutional Court’s website, read paragraph 17 and then answer the questions below:
1. Explain why the Constitutional Court ruled that the amnesty provisions of the TRC Act were constitutional.
2. With which constitutional right does the amnesty dispensation of the TRC Act conflict?
3. What do you understand by the term ‘blanket amnesty’? Explain why the TRC Act’s amnesty dispensation did not
provide for a blanket amnesty.
4. Explain your understanding of transitional justice.
Having received the green light from the Constitutional Court, the Amnesty Committee of the TRC
proceeded with its task to consider applications for amnesty on the basis of the following
conditions:
• The applicant was to appear in person before a hearing of the Committee and fully disclose all
relevant facts about the act for which he or she was seeking amnesty.
• Only members of state institutions and members and/or supporters of political organisations and
liberation movements could apply for amnesty.
• The acts for which amnesty was sought must have been committed with a political objective in
pursuit of the aims of the organisation to which they belonged.125
The Committee received more than 7 000 applications. Of these, just over 1 000 were granted
amnesty. Those who did not apply for amnesty or who were not successful in their applications
because they did not meet the above criteria, remain subject to prosecution in terms of the ordinary
criminal and civil law.
Skills exercise 2.14
The TRC Act defined the ‘act associated with a political objective’ as ‘any act or omission which constitutes an offence’.
Find Antjie Krog’s famous book, Country of My Skull, published in 1998, in the library and read the story on pages 121–
122. Explain, in your own words, the role that the above definition seemed to have played in the story.
The TRC did not consist exclusively of the Amnesty Committee. Two other committees were
constituted in terms of sections 12 and 23 of the TRC Act. Section 12 established the Human Rights
Violations Committee and section 23 the Reparation and Rehabilitation Committee.
2.5.3 The Human Rights Violations Committee
The Human Rights Violations Committee was to facilitate and, where necessary, initiate and
coordinate enquiries into gross violations of human rights. The Committee’s employees interviewed
victims and took their statements. In some cases, victims submitted statements of their own volition.
The Committee scrutinised information contained in the statements and submissions and then made
a formal finding as to whether or not a person could be regarded as a victim of gross human rights
violations as defined by the TRC Act. Of the 21 290 submissions to the Committee, 19 050 were
found to be victims.126 As part of the TRC’s report, the Committee published a brief summary of
each of the 19 050 testimonies it received.
Example of a testimony received by the Human Rights Violations Committee
While they were still waiting there for the students to come out, one of the students came
running and he said, ‘Police are coming in a big convoy, watch out.’ He was warning the other
students. When the police arrived in seven vans and one big truck one […] who was in a police
uniform carried his stick in his armpit […] I think he was a major. [H]e warned the students
that they must disperse immediately. The students started singing Nkosi Sikelele Afrika and
then again the second warning he said I am giving you three minutes to disperse [from] here.
The students continued singing Nkosi Sikelele Afrika and it was hardly three minutes when
he pulled out his firearm and he shot directly at the students. Now all hell broke loose. All
these policemen were shooting at the students randomly.
During the shooting I saw a student fall down and another student picked him up and I
rushed there to take a picture […] of the student, whom we later discovered […] was Hector
Pieterson, and another student by the [name of] Umbiswa Makuba picked Hector Pieterson up
and Antoinette, the sister (who is next to me here) of Hector Pieterson, she was crying
hysterically alongside where Makuba was carrying Hector Pieterson running towards the
direction where our press car was parked.
[…] I helped Antoinette and Umbiswa Makuba to put Hector Pieterson in the press car to be
taken to the Pafene clinic where he was certified dead by the doctor.
On that afternoon Soweto was on fire.
(Testimony of Sam Nzima, TRC Human Rights Violations Committee Hearing, Soweto, 22
July 1996.)
In addition to its work in respect of individual testimonies, the Human Rights Violations Committee
was also tasked with holding institutional hearings for religious communities, the legal community,
business and labour, the health sector, the media, prisons, the armed forces and major political
parties.127 These hearings formed an indispensable part of executing the general mandate to gain as
complete a picture of the past as possible.
2.5.4 The Reparations and Rehabilitation Committee
The Reparations and Rehabilitation Committee was tasked with the development of a reparations
and rehabilitation policy to address the needs of victims. The Committee did not have the power to
order reparation payments or other forms of reparation. Rather, it had to make recommendations to
parliament as regards appropriate reparative measures. As Villa-Vicenzio indicates:
Recognising that the granting of amnesty denies victims the right to institute civil claims against perpetrators, the need
for adequate reparations and rehabilitation became obvious.128
The Reparations and Rehabilitation Committee identified five components for reparations and
rehabilitation. These were:
• urgent interim reparation
• individual reparations grants (eventually limited to a once-off payment of R30 000)129
• symbolic reparations accompanied by legal and administrative interventions (such as issuing
death certificates, erecting tombstones, exhumations and reburials, days of remembrance and so
forth)
• community rehabilitation
• institutional reform ‘to prevent the recurrence of human rights abuses’.130
A President’s Fund was subsequently established in the Department of Justice and Constitutional
Development. The Fund received contributions from government, foreign countries and a number of
individuals. Its chief purpose is reparation payments and other measures and interventions aimed at
rehabilitation and reparation. Unfortunately, the Fund ‘continues to be underutilised’.131 According
to the latest annual report, the Fund bears undistributed net assets in excess of R900 million, the
bulk of which is held in the form of investments available for sale.132 The report states further that a
‘community rehabilitation model’ is in the process of being constructed, and that regulations in
respect of financial assistance to families for reburial or symbolic burial of persons whose remains
were exhumed by the TRC is in the process of being finalised.133
In the meantime, apartheid victims who feel that government is not meeting its commitment to
reparation in an acceptable manner have proceeded to lodge claims in the United States courts
against several multinational corporations that operated in South Africa during the apartheid era and
supplied goods and services to the government.134 These claims argue that the corporations being
sued aided and abetted the apartheid government in perpetrating gross human rights violations and
that they are, for this reason, liable to make reparation payments to the victims of apartheid. The
claims were filed in the United States under the Alien Tort Claims Act which allows non-United
States parties (or ‘aliens’) to sue in United States courts for violations of international law. The
greatest legal obstacle from the point of view of the plaintiffs is uncertainty as to the question
whether the Alien Tort Claims Act provides liability for non-state entities such as corporations. A
final outcome on these cases is still pending.135
2.5.5 Transformative constitutionalism
The discussion above indicates that the two post-apartheid constitutions were the product of an
agreement between the country’s leaders to transform South Africa away from its racist, oppressive
past. For these constitutions to have facilitated, and for the Constitution to continue to facilitate,
such a transformation, they needed to provide for transitional and restorative forms of justice that
deviate in significant ways from traditional corrective forms of justice. Amnesty, affirmative action,
the non-discrimination provisions, the horizontal application provisions, as well as the protection of
socio-economic rights, can all be said to embody one or other form of transitional or restorative
justice. Because the Constitution is the primary vehicle through which transformation is to be
achieved and because this transformation crucially requires a reckoning with a past characterised by
vast inequalities, the Constitution cannot simply be purely liberal. Instead, it incorporates post-
liberal, transformative measures to address some of the root causes of violence and lawlessness in
our society.
restorative justice: a theory of justice that focuses on reconciliation rather than retribution as in corrective justice
transformative constitutionalism: constitution-driven transformation
Klare refers to this post-liberal process of constitution-driven transformation as ‘transformative
constitutionalism’.136 He explains that transformative constitutionalism is, in the first place, a long-
term project committed to a future of ‘large scale, egalitarian social transformation […] through
non-violent political processes grounded in law’.137 He envisages for South Africa a transformation
‘vast enough to be inadequately captured by the phrase “reform”, but something short of or different
from “revolution” in any traditional sense of the word’.138 For Klare, the project of transformative
constitutionalism necessitates a particular judicial mindset, one that invites a ‘new imagination and
self-reflection about legal method, analysis and reasoning consistent with [the Constitution’s]
transformative goals’.139
Klare believes that the ‘intellectual instincts and habits of mind of the traditional common or
Roman-Dutch lawyer trained and professionally socialized during the apartheid era’140 are
inadequate for the project of transformative constitutionalism because this ‘requires a transformative
conception of adjudicative process and method’.141 In City of Johannesburg v Rand Properties (Pty)
Ltd,142 Jajbhay J put the matter as follows:
The full transformative power of the rights in the Bill of Rights will only be realised when they are interpreted with
reference to the specific social and economic context prevalent in the country as a whole, and the social and economic
context within which the applicant now finds itself in particular.143
In a lecture delivered at the University of Stellenbosch on 9 October 2006, former Chief Justice Pius
Langa locates the origin of transformative constitutionalism in the epilogue of the interim
Constitution and plainly describes what he understands transformative constitutionalism to be.
Referring to the epilogue, he states:
This is a magnificent goal for a Constitution: to heal the wounds of the past and guide us to a better future. For me, this
is the core idea of transformative constitutionalism: that we must change.144
Langa goes on to highlight the massive socio-economic transformations that still need to take place
in South Africa, stating that ‘the levelling of the economic playing field’ is ‘absolutely central to
any concept of transformative constitutionalism’.145
Like Klare, Langa also highlights the transformation of South African legal culture as part of
transformative constitutionalism. He recalls Mureinik’s earlier argument that the shift from
apartheid to post-apartheid South Africa also involves a shift in legal culture from authority to
justification – ‘a culture in which every exercise of power is expected to be justified; in which the
leadership given by government rests on the cogency of the case offered in defence of its decisions,
not the fear inspired by the force of its command’.146 He goes on to emphasise that the task of
judges in a transformative legal order such as ours is to justify their decisions with reference to
‘ideas and values’ enshrined in the Constitution.147 Langa was also at pains to point out that such an
approach to adjudication requires an acceptance of the politics of law, an acceptance that law is
inseparably linked to politics even though it is distinct from politics. This means that the notion of a
‘neutral’ judge148 has to be rejected:
We all enter any decision with our own baggage, both on technical legal issues and on broader social issues. While the
policy under apartheid legal culture was to deny these influences on decision-making, our constitutional legal culture
requires that we expressly accept and embrace the role that our own beliefs, opinions and ideas play in our decisions.
This is vital if respect for court decisions is to flow from the honesty and cogency of the reasons given for them rather
than the authority with which they are given.149
Yet, Langa emphasises that the acknowledgement of the politics of law does not and should not
translate into an erosion of the rule of law. Linking the issue of access to justice to the pervasive
inequality in South Africa, he writes:
The Constitution should not become a tool of the rich. Equal justice means that the fruits of justice are there for all to
enjoy. The provision of equal access to justice is therefore a priority in reaching our transformative goal.150
Nor does the acknowledgement that there is a substantial overlap between law and politics imply
infidelity to the separation of powers. The separation of powers places a distinct limit on judicial
activism. Judges are bound by the text of the applicable law before them. They must interpret this
text and, where a culture of justification prevails, their interpretation must always be justifiable with
reference to the ideals and values of the Constitution: ‘Were the courts to completely discard any
adherence to the text they would enter squarely into the domain of the legislature as creators rather
than interpreters of the law’.151 At the same time, judges are required to bring the law in line with
the rights and values enshrined in the Constitution through interpretation and declarations of
constitutional validity or invalidity.
In the end, as Langa points out, transformative constitutionalism is the task of all three branches
of government.152 However, as he clearly states, ‘transformation is not something that occurs only
in courtrooms, parliaments and governmental departments’.153 In our daily lives and social
interactions, transformation is closely linked to social reconciliation. Langa argues that the creation
of what he calls a ‘climate’ for reconciliation crucially depends on the beneficiaries of apartheid
taking responsibility for reconciliation by chiefly contributing to measures aimed at social justice
and the levelling of the socio-economic playing field in South Africa.154 In the conclusion of his
address, Langa states that ‘the true challenge of transformation’ lies in never to stop ‘dreaming,
imagining and planning that things could be different, could be better’.155
Skills exercise 2.15
In a controversial speech delivered during August 2011 in Stellenbosch, Archbishop Desmond Tutu suggested that the
white population, as beneficiaries of apartheid, should pay a special tax that would symbolically serve to acknowledge
and to make reparation for the benefits they enjoyed under the system of apartheid. With regard to what you have
learned about the rule of law, the transformative nature of the Constitution, and the role and functioning of the TRC,
debate whether this suggestion should be adopted as policy by the current government.
2.6 Conclusion: the point of law
positivist approach: an approach to law where laws are recognised as valid if they have been enacted by the
legislature regardless of whether they are fair and just
natural law approach: an approach to law where laws are only recognised as valid if they comply with universal
principles of morality and justice
In this chapter, you have seen how law has historically been used in South Africa to execute the evil
purpose of racialised oppression, exploitation and deprivation. In terms of one approach to the
understanding of law, the so-called positivist approach, everything that the apartheid government
did in South Africa was legal because apartheid policies were primarily executed in terms of acts of
parliament. Another approach to law, the natural law approach, would argue that the laws of the
apartheid order were so evil and reprehensible that they were not really laws. This approach also
points to the fact that the legislative power under apartheid was illegitimate because it did not have
the support of the majority of the population of South Africa. Of course, the apartheid government
did everything in its power to mask this illegitimacy from the creation of ‘independent homelands’
for the black population to the pretence that ‘separate development’ was beneficial for the black
majority.
You have also seen in this chapter that when the apartheid legal order was brought to its knees,
the key role players in the negotiations turned to law, albeit a better, more legitimate and more just
version, to facilitate the transformation of South Africa from a racist, authoritarian country to a non-
racial, non-sexist order where the rule of law and a culture of justification prevails.
rule of recognition: the rule by virtue of which a community recognises that a specific rule is binding law
From this discussion, you can see that law, as Roederer and Moellendorf put it, has both a
productive and a destructive power.156 In this regard, recall also that everything Hitler perpetrated in
Nazi Germany took place under the aegis of legality. Roederer and Moellendorf’s description raises
an old debate in jurisprudential circles. This debate took place between Hart and Fuller in the
aftermath of World War II.157 Hart believed, in accordance with the positivist tradition, that the
moral desirability of a law is not a criterion for its validity. This means that evil or immoral law is,
in Hart’s view, still law if it ultimately conforms to the so-called rule of recognition – the rule by
virtue of which a community recognises that a specific rule is binding law. The rule of recognition
in apartheid South Africa, for instance, was that parliament followed the correct procedures when it
enacted a bill and therefore the bill is valid law. Hart argued that if the community believes enacted
laws to be immoral, its remedy lies in disobedience. Fuller, however, argued that there simply is no
law in these circumstances because these immoral ‘laws’ would, for the most part, not conform to
the internal morality of law. For Fuller, the point of law is not simply to create order, but rather to
create good order, that is, an order that is committed to values and ideals from which everyone
stands to benefit.
For centuries, philosophers have debated the question of why societies need law. On the one
hand, some, such as Hobbes, argued that without law (and here the law is a sovereign who is
himself above the law), the state between humans is ‘solitary, poor, brutish, nasty and short’.158
Clearly, Hobbes believed that human beings are, by nature, selfish and murderous, and that they
need law to ensure their survival as a species. Locke, on the other hand, believed that the state
before law – the so-called state of nature – is a state of equality and freedom, but nevertheless a
state of chaos. The purpose of law is to order the chaos in accordance with the natural law which
Locke also calls the law of reason. Law thus comes about as a result of the need to protect the ‘life,
liberty and property’ of all people.159 Rousseau believed that people form a government of laws
through their collective realisation of the benefits of cooperation – a concept to which he referred as
the general will. The individual will of a citizen is subordinated to the general will which is
embodied in the social contract.160 Rousseau’s theory differs from Hobbes in that he does not argue
for an omnipotent sovereign, but rather for the rule of the people through the general will.
The events of the twentieth century, marked as they were by two world wars, several civil wars,
genocides, as well as the often violent demise of colonialism, has relativised the concept of law as a
human construct through which benign order is established. Law, or at least the claim to legality, has
been enlisted and has been complicit in the perpetration of the worst crimes against humanity in the
modern age. Yet, at the same time, law has also liberated the oppressed and created opportunities
and possibilities where previously there were none. Perhaps this is the only true or inherent nature
of law – that it is only ever as good and as laudable as the human beings who construct, declare and
enforce it. The history of South Africa has illustrated that law can be set in pursuit of the most evil
of aims. Our history has also illustrated that, as Langa contends, under the law things can be better
or otherwise than they were under apartheid’s reign. As emeritus judge, Ackermann writes:
The ultimate fate of the Constitution, a bridge with a very long span, will not be decided by the jurisprudence of its
courts alone, however inspired and devoted that may prove to be. A transforming constitution such as ours will only
succeed if everyone, in government as well as in civil society at all levels, embraces and lives out its values and its
demands.161
Ultimately, law does not exist separately, independently or apart from the human beings who are
responsible for its enactment or who live under its force. When ordinary citizens no longer feel that
the law is theirs, there arises a time of disorder, lawlessness, revolt and even revolution. It is this
responsibility for the law that the post-apartheid Constitution underscores in its opening words: ‘We,
the people’.
THIS CHAPTER IN ESSENCE
1. This chapter begins by recounting the story of South Africa’s progression from the
apartheid legal order to the constitutional democracy we live in today. It places the
negotiated settlement between the apartheid government and the liberation
movements in the context of significant historical moments that challenged the
advance to a post-apartheid South Africa.
2. In terms of the interim Constitution, the new government had to draft and adopt a final
Constitution that would comply with 34 predetermined constitutional principles.
President Mandela signed the text of the final Constitution into law on 10 December
1996 and it came into effect on 4 February 1997.
3. Parliamentary sovereignty means that the supreme controlling power (sovereignty) to
make and enforce decisions in the form of legislation is exclusively vested in an
elected parliament. When a parliament, constituted by a minority as was the case in
apartheid South Africa, uses its sovereignty to entrench the violation of human rights,
it becomes a vehicle for oppression and injustice.
4. In South Africa today, the Constitution is sovereign. The notion of constitutional
sovereignty is intertwined with the rule of law. Constitutional sovereignty means that
any law or conduct that is inconsistent with the Constitution is invalid.
5. As the Court of final instance, the Constitutional Court is the final arbiter in the
determination of whether a law or conduct is inconsistent with the Constitution and
therefore invalid.
6. The rule of law means that the same law applies equally to everyone. It also means
that all state conduct must be in accordance with and sanctioned by the law.
7. In a liberal democracy the rule of the majority is limited by predetermined procedures
as contained in a constitution.
8. In South Africa, the liberal elements of our democracy also imply that governmental
power is divided among the three branches of government, namely the legislature
(parliament), the executive (the president and cabinet) and the judiciary (the courts).
This is known as the separation of powers.
9. Because the Constitution also addresses the social and economic injustices of the
past, it is a transformative constitution. Transformative constitutionalism provides for
large-scale social and legal change through political processes that are themselves
regulated by the law.
10. The South African Truth and Reconciliation Commission (TRC) was created in terms
of the TRC Act to investigate the nature, causes and extent of gross violations of
human rights resulting from past conflicts. The TRC facilitated an amnesty process in
terms of which people who fully disclosed acts that they had committed with a political
objective in the course of past conflicts would be granted amnesty.
11. The Human Rights Violations Committee facilitated enquiries into gross violations of
human rights.
12. The Reparations and Rehabilitation Committee developed a reparations and
rehabilitation policy to address the needs of victims.
13. A positivist approach to law recognises laws as valid if they have been enacted by the
legislature regardless of whether they are fair and just. A natural law approach only
recognises laws as valid if they comply with universal principles of morality and justice.
14. The chapter concludes with a consideration of both the destructive and productive
force of law, underscoring the fact that law is a social construct for which legal
subjects, individually and collectively, bear the ultimate responsibility.
Notes
1 Langa, P. 2006. Transformative constitutionalism. Stellenbosch Law Review, 17:351.
2 Mandela, N.R. 1994. State of the Nation Address, 24 May 1994. [Online].
Available at: http://www.info.gov.za/speeches/1994/170595002.htm [4 December 2011].
3 Ibid.
4 Ibid.
5 In writing, the most common form of plagiarism is to quote someone else’s words without putting those words
in quotation marks or acknowledging the source of the quotation, i.e. the book, article or report where you found the
quoted words and from which you copied them.
6 De Klerk, F.W. 1990. Address by the State President, Mr F.W. de Klerk, DMS, at the opening of the second
session of the ninth parliament of the Republic of South Africa, Cape Town, 2 February 1990. [Online].
Available at: www.info.gov.za/speeches/1996/101348690.htm [4 December 2011].
7 Ibid.
8 The Groote Schuur Minute, 4 May 1990. [Online]. Available at: http://www.anc.org.za/show.php?id=3881 [4
December 2011]. Although there had been previous secret meetings between the ANC and the political leadership
in South Africa, these meetings could be described as negotiations about negotiations.
9 The Pretoria Minute, 6 August 1990. [Online]. Available at: http://www.anc.org.za/show.php?id=3884 [6 March
2012].
10 National Peace Accord 1991. [Online]. Available at: http://www.anc.org.za/show.php?id=3967 [6 March
2012].
11 Welsh, D. 2009. The Rise and Fall of Apartheid, pp. 434–435, 439.
12 Ibid at 424, 435.
13 Ibid at 435, 439.
14 Ibid at 439.
15 Nelan, B.W., Hawthorne, P. and Macleod, S. 1992. South Africa: Yes! Time, 30 March 1992. [Online].
Available at: http://www.time.com/time/magazine/article/0,9171,975187-1,00.html [4 December 2011].
16 Welsh supra n 11 at 438.
17 As Welsh supra n 11 at 445 indicates, the seemingly technical nature of the deadlock in fact reflected a
profound disagreement between the ANC and the NP on the nature of democracy.
18 Ibid at 444.
19 Statement of the emergency meeting of the National Executive Committee of the ANC, 23 June 1992.
[Online]. Available at: http://www.anc.org.za/show.php?id=4133 [6 March 2012].
20 United Nations Security Council Resolution 765 (1992) of 16 July 1992. [Online].
Available at: http://www.un.org/documents/sc/res/1992/scres92.htm [4 December 2011].
21 Ebrahim, H. 1998. The Soul of a Nation. [Online]. Available at: http://www.sahistory.org.za/archive/chapter-7-
defining-process [20 January 2012].
22 Ibid.
23 Truth and Reconciliation Commission of South Africa Report. 1998. Vol 3 at p. 683 at para 593.
24 Statement on Boipatong Massacre, 20 June 1992. [Online]. Available at: http://anc.org.za/show.php?id=8534
[25 February 2012].
25 Statement of the emergency meeting of the National Executive Committee, 23 June 1992 supra n 19.
26 Truth and Reconciliation Commission of South Africa Report supra n 23 at 687–688 at para 594.
27 Ibid at 687 at para 594.
28 Ibid at 689 at para 598.
29 United Nations Security Council Resolution 765 supra n 20.
30 Welsh supra n 11 at 453.
31 Ibid at 455.
32 Record of Understanding Between ANC and Government, 26 September 1992. [Online].
Available at: http://www.anc.org.za/show.php?id=4206 [6 March 2012].
33 Welsh supra n 11 at 482.
34 Ibid at 483.
35 Ibid.
36 Television address to the nation by ANC President Nelson Mandela on the assassination of Chris Hani, 13
April 1993. [Online]. Available at: http://www.anc.org.za/show.php?id=4304 [6 March 2012].
37 See, for instance, the editorial, Sluipmoord op Hani. Die Burger, 12 April 1993, p. 8.
38 Welsh supra n 11 at 485.
39 Ibid at 501.
40 See 13.1 in Goldstone, R.J. 1993. Report on the Inquiry into the Events at the World Trade Centre on 25
June 1993. [Online]. Available at: http://www.anc.org.za/show.php?id=4216 [6 March 2012].
41 Ibid at 19.
42 Act 200 of 1993 (the ‘interim Constitution’).
43 Welsh supra n 11 at 532.
44 Ibid at 560.
45 Currie, I. and De Waal, J. 2005. The Bill of Rights Handbook 5th ed., p. 7.
46 As Drucilla Cornell writes, ‘there can be no final Constitution because it will be up to the people of South
Africa continually to transform this country as guided by the great ideas of dignity, equality and justice’. Cornell, D.
2008. Bridging the span toward justice: Laurie Ackermann and the ongoing architectonic of dignity jurisprudence.
Acta Juridica, 48:18. The Citation of Constitutional Laws Act 5 of 2005 provides that the Constitution must be cited
and referred to differently from other acts of parliament. All acts of parliament are assigned a number, except for the
final Constitution, which is to be cited simply as ‘Constitution of the Republic of South Africa, 1996’.
47 Currie and De Waal supra n 45 at 5.
48 Ibid.
49 Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of
South Africa, 1996 1996 (4) SA 744 (CC) at para 31.
50 Currie and De Waal supra n 45 at 6.
51 Certification of the Amended Text of the Constitution of the Republic of South Africa, 1996 1997 (2) SA 97
(CC).
52 Currie and De Waal supra n 45 at 7.
53 5 of 2005 (the ‘Citation of Constitutional Laws Act’).
54 Oxford English Dictionary. [Online]. Available at: http://dictionary.oed.com/ [12 July 2012].
55 Sarkin, J. 1999. The drafting of South Africa’s final Constitution from a human rights perspective. American
Journal of Comparative Law, 47:67.
56 Ibid.
57 Ibid.
58 Ibid.
59 Dicey, A.V. 1959. Introduction to the Study of the Law of the Constitution, pp. 39–40, as quoted in Van der
Vyver, J.D. 1982. Parliamentary sovereignty: fundamental freedoms and a bill of rights. SALJ, 99:557 at 561.
60 The Westminster model consists of the sovereign (king or queen) as ceremonial head of state, the House of
Commons and the House of Lords. See Clarke, P.B. and Foweraker, J. (Eds). 2001. Encyclopedia of Democratic
Thought, p. 880.
61 Philpott, D. 2010. Sovereignty. In Zalta, E.N. (Ed.). The Stanford Encyclopedia of Philosophy (Summer 2010
Edition). [Online]. Available at: http://plato.stanford.edu/archives/sum2010/entries/sovereignty/ [4 December 2011].
62 Van der Vyver supra n 59 at 569.
63 Ibid at 570.
64 Pakenham, T. 1991. The Scramble for Africa, p. 579.
65 The Balfour Declaration of 1926 described dominions as ‘autonomous communities within the British Empire,
equal in status, in no way subordinate one to another in any aspect of their domestic or external affairs, though
united by a common allegiance to the Crown and freely associated as members of the British Commonwealth of
Nations’.
66 Van der Vyver supra n 59 at 570.
67 The apartheid government was illegitimate because its exercise of state power was not supported by the
majority.
68 Van der Vyver supra n 59 at 571.
69 Ibid at 570.
70 Union of South Africa Act of 1909 (the ‘Union Constitution’).
71 Griswold, E.N. 1952. The ‘Coloured Vote Case’ in South Africa. Harvard Law Review, 65:1361 at 1362.
72 46 of 1951 (the ‘Separate Representation of Voters Act’).
73 Ibid at 1363. As Dlamini points out, the government did not have the requisite two-thirds majority in a joint
sitting. See Dlamini, C.R.M. 1988. The Senate case revisited. SALJ, 105:470 at 471.
74 1952 (2) SA 428 (A).
75 1952 (4) SA 769 (A). In the legislation under consideration in this case, parliament attempted to make itself a
court of final instance so that it could override Appellate Division decisions that were not in its favour.
76 Wade, H.W.R. 1957. The Senate Act case and the entrenched sections of the South Africa Act. SALJ,
74:160.
77 1957 (1) SA 552 (A).
78 53 of 1955 (the ‘Senate Act’).
79 Dlamini supra n 73 at 471.
80 S 2 of the Constitution.
81 1995 (6) BCLR 665 (CC).
82 Himonga distinguishes between two forms of customary law. The first she describes as the living customary
law. This law consists of customs and usages rooted in the legal systems of the indigenous people of South Africa
‘and which form the culture of those peoples’. The other form is the so-called official customary law. This is the
customary law ‘applied by the courts and interpreted mainly through the substantive and procedural filters of the
common law and customary law that has been codified by legislation’. Himonga argues that the latter was
developed during apartheid and often does not reflect the living customary law. For this reason, she argues that it
should ideally not be applied in post-apartheid South Africa. See Himonga, C. 2007. Selected features of the South
African legal system. Paper presented at the International Association of Law Schools Conference on Learning from
Each Other: Enriching the Law School Curriculum in an Interrelated World, October 17–19, 2007, the Kenneth Wang
School of Law, University, Suzhou, P.R. China. See also ch 5.
83 Historically, the common law originated in the Netherlands and is known as Roman-Dutch law. It arrived in
South Africa as a result of initial Dutch colonisation. Because South Africa was also subsequently colonised by the
British, English common law has formed part of our common law since 1815. See also ch 5.
84 S 173 of the Constitution.
85 S 39 of the Constitution.
86 Fuller, L.L. 1969. The Morality of Law 2nd ed., p. 39.
87 Ibid at 96–97.
88 Ibid at 4.
89 Agamben, G. 2005. State of Exception, p. 2.
90 Currie and De Waal supra n 45 at 264.
91 Jones, H.W. 1958. The rule of law and the welfare state. Columbia Law Review, 58:143 at 151.
92 See chs 5 and 12 for an explanation of how publishers cite cases.
93 For a review of the Constitutional Court’s jurisprudence on the affirmative action provisions in the interim and
final Constitutions, see Pretorius, J.L. 2010. Fairness in transformation: A critique of the Constitutional Court’s
affirmative action jurisprudence. SAJHR, 26:536.
94 See s 167(5) of the Constitution.
95 The appointment of judges is regulated by s 174 of the Constitution. Essentially, the president appoints
judges on the advice of the Judicial Service Commission. The composition of the Judicial Service Commission is
regulated by s 178.
96 Brand, D. 2008. Writing the law democratically: A reply to Theunis Roux. In Woolman, S. and Bishop, M.
(Eds). 2008. Constitutional Conversations, p. 102.
97 Currie and De Waal supra n 45 at 8. This description of what is at stake in constitution making clearly
indicates why the constitutions of colonial and apartheid South Africa were not really constitutions in any meaningful
sense – they did not carry democratic legitimacy because the majority of the people in the territory did not vote for
them. They were also clearly designed to allow for the unbridled exercise of oppressive governmental power in
favour of a small minority.
98 Currie and De Waal supra n 45 at 9–10.
99 As a result of what is called the horizontal application of the Bill of Rights, individuals also have these claims
(in certain circumstances) against each other and where it comes to the exercise of private power.
100 Currie and De Waal supra n 45 at 9.
101 Langa, P. 2006. Symposium: ‘A delicate balance’: The place of the judiciary in a constitutional democracy: The
separation of powers in the South African Constitution. SAJHR, 22:2 at 4.
102 Currie and De Waal supra n 45 at 10.
103 Langa supra n 101 at 4.
104 Supra n 49 at para 108.
105 Ibid at para 109.
106 Ibid at para 111.
107 1998 (3) SA 785 (CC).
108 Ibid at para 60.
109 1996 (2) SA 751 (CC).
110 Ibid at para 105.
111 Langa supra n 101 at 9.
112 Heyns, C. and Brand, D. 1998. Introduction to socio-economic rights in the South African Constitution. Law,
Democracy and Development, 2:153 at 154.
113 Ibid.
114 See s 2(1) of Act 34 of 1995 (the ‘TRC Act’).
115 Van Zyl, P. 1999. Dilemmas of transitional justice: The case of South Africa’s Truth and Reconciliation Commission.
Journal of International Affairs, 52:647 at 649.
116 Ibid.
117 Ibid.
118 Ibid.
119 Ibid at 650.
120 Ibid at 651.
121 Ibid at 652.
122 1996 (4) SA 671 (CC).
123 Ibid at para 8.
124 Ibid at para 17.
125 Villa-Vicenzio, C. 2009. The Truth and Reconciliation Commission. In Nasson, B. and Siebörger, R. (Eds). Turning
Points in Human Rights Book 1: Constitutional Rights, p. 68 at 73.
126 Ibid at 75.
127 Ibid at 76.
128 Ibid.
129 The Committee recommended an annual payment for six years of up to R23 023, payable in six instalments per
year.
130 Villa-Vicenzio supra n 125 at 77.
131 Ibid at 77.
132 Department of Justice and Constitutional Development. 2010. President’s Fund Annual Report for 2009/10. [Online].
Available at: www.justice.gov.za/reportfiles/other/PresFund_ANR_2009-2010.pdf at p. 17 [4 December 2011].
133 Ibid at 4–5.
134 For a useful overview, see Osborne, M. 2007. Apartheid and the Alien Torts Act: Global justice meets sovereign
equality. In Du Plessis, M. and Pete, S. (Eds.). Repairing the Past?, pp. 231–293. Also see Handl, G. 2010. In Re
South African apartheid litigation and beyond: Corporate liability for aiding and abetting under the Alien Tort Statute.
German Yearbook of International Law, p. 53.
135 However, the bankrupt General Motors settled, in February 2012, a reparations claim in the amount of $1,5 million
by 25 victims of apartheid. The settlement was ratified by a United States court. See Ephraim, A. 2012. US General
Motors settles apartheid reparations claim. Mail and Guardian, 29 February. [Online].
Available at: http://mg.co.za/article/2012-02-29-us-general-motors-settles-apartheid-reparations-claim/ [20 May
2012].
136 Klare, K. 1998. Legal culture and transformative constitutionalism. SAJHR, 14:146.
137 Ibid at 150.
138 Ibid.
139 Ibid at 156.
140 Ibid.
141 Ibid.
142 2006 (6) BCLR 728 (W).
143 Ibid at para 52.
144 Langa supra n 1 at 352.
145 Ibid.
146 Mureinik, E. 1994. A bridge to where? Introducing the interim Bill of Rights. SAJHR, 10:31 at 32.
147 Langa supra n 1 at 353.
148 There is, of course, a difference between a neutral judge and an impartial judge.
149 Langa supra n 1 at 353.
150 Ibid at 355.
151 Ibid at 357.
152 Ibid at 358.
153 Ibid.
154 Ibid at 359.
155 Ibid at 360.
156 Roederer, C. and Moellendorf, D. 2004. Jurisprudence.
157 Hart, H.L.A. 1958. Positivism and the separation of law and morals. Harvard Law Review, 71:593 and Fuller, L.L.
1958. Positivism and fidelity to law: A reply to Professor Hart. Harvard Law Review, 71:630.
158 Hobbes, T. 1651. Leviathan Part 1, p. 86.
159 Locke, J. 1821. Two Treatises on Government, p. 191.
160 Rousseau, J. 1762. The Social Contract.
161 Ackermann, L.W.H. 2004. The legal nature of the South African constitutional revolution. New Zealand Law Review,
633 at 679.
Chapter 3
The historical functions of law: from the
Roman to the canonical period
3.1 The historical function of law
3.2 External legal history, internal legal history and legal-historical frameworks
3.3 Roman law
3.3.1 Ancient law (753 BCE–250 BCE)
3.3.2 Pre-classical law (250 BCE–27 BCE)
3.3.3 Classical law (27 BCE–284 CE)
3.3.4 Post-classical law (284–527)
3.3.5 Justinian law (527–565)
3.4 Germanic tribes and legal development
3.4.1 Early Germanic law (up to 400)
3.4.2 Frankish period (400–800)
3.4.3 Feudal period (800–1100)
3.5 The High to Late Middle Ages (1000–1500)
3.5.1 Glossators
3.5.2 School of Orléans
3.5.3 Post-Accursiani
3.5.4 Post-Glossators
3.6 Canon law
This chapter in essence
3.1 The historical function of law
The law is not a modern concept – it has been in existence since the earliest of times. Even the most
primitive communities had rules according to which they established and regulated order and
resolved conflict. These rules were often based on custom or religion, and they were generally fairly
simple. They constituted a common response to the problem of community life – where people live
or have contact with one another, and trade or work together, they must have a common
understanding of how to interact in a manner that minimises conflict and deals with disagreements
when they arise. Over the years, customs and rules developed and formed the basis of the different
legal systems we encounter today. Each state therefore has its own legal history as well as its own
unique legal system, but they are related through the objectives of securing order and resolving
conflict.
REFRAMING
Current reality shows on television, such as Survivor, attempt to mimic the conditions of primitive people. Watch an
episode of Survivor or a similar kind of reality show and note how the individuals in the group attempt to regulate their
conduct through the establishment of rules. Note, in particular, what happens when a member of the group violates
the rules.
To occupy a position as a fully fledged member of the legal profession, it is necessary to be more
than a legal technician or mechanic. The legal profession in every nation state has rich historical ties
to the past and South Africa is no exception. South African lawyers should not only have a sound
knowledge of and insight into the overarching doctrines and specific rules of particular areas of law,
but should also be familiar with the broader historical context of South African law. This knowledge
contributes to understanding why a legal rule exists at all and why it assumes the particular form
that it does. This knowledge and historical sensitivity will also assist you to evaluate law critically.1
Moreover, with regard to the LLB curriculum specifically, an understanding of legal history is
critical for understanding, among others, the law of contract, property and delict because these areas
of law have their foundations in ancient legal systems. Studying the evolution of legal systems over
time also assists in appreciating the factors that ensure continuity in the law and that contribute to
change.
legislation: written legal rules promulgated by the recognised legislative authority in the state
judicial precedent: when hearing a matter, a court must take into account previous judgments in similar cases
The roots of modern South African law extend back to Roman law, Roman-Dutch law, African
customary law and English law, as well as religious-based systems such as the Islamic, Hindu and
Jewish legal systems.2 While many of the principles of these legal systems have been captured, or
possibly changed or even overruled, in modern sources of law such as legislation and judicial
precedent, it may at times still be necessary to research a legal principle in the context of its
originating legal system. Even where a rule or principle has been accepted and elaborated in a court
case, it is important to have a contextual understanding of the origin and development of that rule or
principle.
COUNTER POINT
The importance of knowledge of Roman law
Balatseng writes of the importance of knowledge of Roman law, in particular, for our contextual understanding of
particular rules as follows:
comitiae: assemblies of Roman citizens3
curiata: most ancient assembly of Romans to elect magistrates4
tributa: assembly convened by the tribes to vote for magistrates5
centuriata: the proper assembly of Roman citizens to vote for magistrates
lekgotla: Tswana traditional court or meeting of Setswana-speaking community
The principles and history of Roman law are so similar to those of indigenous laws that one wonders what would
have happened had the development of indigenous law not been stifled. When one looks at the different early
comitiae of Rome – i.e., curiata, tributa and centuriata – one is confronted by a similar set-up based on similar
functions of these comitiae and the comitiae of the indigenous peoples. Curiata – Lekgotla, Centuriata – Mephato
and Tributa – Dikgoro, in the language of the Setswana-speaking peoples. […]
There is much talk today among students and academics alike, especially in the Republic of South Africa, that
Roman law should be abolished, that it is obsolete, etc. To a certain extent these calls are genuine for they refer
back to us who have a passion towards this history, the way that those of us who teach Roman law teach it, the
way we see it as a history of the Romans which bears no reference and no meaning to us.
The way Roman law developed shows that it was a living science like technology. Today we need legal thinkers
and people who can work on reforming the law and developing it. If one looks at the role played by the Roman
jurists during the different times there is no way in which we can talk about reform or development without
referring to their methods.6
3.2 External legal history, internal legal history and legal-historical
frameworks
Legal historians frequently draw a distinction between external and internal legal history. External
legal history includes all the different factors that may have had an influence on the development of
law in a particular period. It includes social, economic, political, religious and cultural
circumstances and the philosophical ideas associated with each. For instance, in Europe in the
Middle Ages, the church played a major role and strongly influenced the development of law.
Communism recently influenced the law in eastern Europe. In South Africa, a political decision to
segregate different races, which was in turn based on social, economic and cultural factors, had a
profound effect on the development of South African law for much of the twentieth century as
discussed in chapter 2. Each country or region has its own story to tell. There is not necessarily one
truth or one historical fact linking all legal developments together. The law is casuistic and reacts to
a variety of challenges during a particular time. The study of the external history of law includes a
study of the most important sources of law and the most important legal practitioners who engaged
in legal development.
casuistic: adjective of casuistry, a method of reasoning used in resolving cases involving moral dilemmas
Internal legal history refers to the development of material or substantive law. Material or
substantive law is the set of rules that defines rights and duties relating to, for example, marriage,
murder, contracts and leases. The internal history of law is therefore the narrative of the
development of substantive legal norms, for example how the rules pertaining to marriage have
changed through the ages.
The legal-historical method is an exploration of the development of material legal norms over
the ages (internal legal history) in the context of socio-economic, philosophical, religious and
political factors (external legal history).7
Skills exercise 3.1
Read the following paragraphs from Farlam J’s minority judgment in Fourie v Minister of Home Affairs.8 This case dealt
with the issue of the constitutionality of the common law definition of marriage in light of the constitutional prohibition
against unfair discrimination on the basis of sexual orientation.
Fourie v Minister of Home Affairs
History of institution of marriage in our law
[68] Before I proceed to consider these issues it is in my view desirable to say something about the history of the
institution of marriage in our law.
[69] It is convenient for our purposes to begin with the marriage law of the Romans during the period of the classical
Roman law (the first two and a half centuries of the Christian era). As Professor Max Kaser says:
affectio maritalis: conjugal affection with an intention to live as husband and wife for life
[T]he Roman marriage (matrimonium) was not a legal relationship at all, but a social fact, the legal effects of which
were merely a reflection of that fact. […] Marriage was a ‘realised union for life’ […] between man and woman,
supported by affectio maritalis, the spouses’ consciousness of their union being marriage.
The act which brought the marriage into existence was a purely private one. No State official was involved. The
marriage did not have to be registered: indeed no public record of any kind was required. No religious or
ecclesiastical rite was essential, even after Christianity became the official religion of the Roman Empire in AD 313.
In fact no prescribed form was required. All that was necessary was the reciprocally expressed consent of the
parties, even cohabitation was not required. Ulpian expressed the rule as follows (D 35.1.15; D 50.17.30):
Nuptias non concubitus, sed consensus facit. (Consent not cohabitation makes a marriage.)
[70] Even when marriage began to be controlled by the Church after the disintegration of the Roman Empire in the
West, what Bryce calls ‘the fundamental conception of marriage as a tie formed solely by consent, and needing the
intervention neither of State nor of Church’ remained the legal position until the middle of the 16th century. The
Church’s control over marriage was manifested in the fact that, from the tenth century, the Church’s tribunals had
exclusive jurisdiction in regard to questions relating to marriage. As a result there was a uniform law of marriage
applied in Western Europe. Marriage, which the Church regarded as a sacrament, was indissoluble, except by
decree of the Pope. The Church encouraged the parties to declare their consent before a priest and to receive a
blessing; what was referred to as the benedictio ecclesiae (the blessing of the church). In some areas the publication
of banns before the church ceremony was insisted on and this was made the general law of the Church by the
Fourth Lateran Council of 1215. Only marriages which took place ‘in the face of the Church’ were regarded as
‘regular’ marriages.
[71] But marriages resting on the consent of the parties alone, so-called ‘irregular’ marriages, were nevertheless
valid, although the parties thereto were subject to ecclesiastical and secular penalties. Secret or clandestine
marriages, which often gave rise to great scandal, were thus valid. Eventually the need for reform became irresistible
and at its Twenty-Fourth Session in 1563 the Council of Trent passed a decree, the famous Decretum Tametsi,
which, after reciting that clandestine marriages had been held valid, though blameworthy, declared that for the future
all should be deemed invalid unless banns were published and the parties declared their consent before a priest and
at least two witnesses. The decrees of the Council of Trent did not become law in the Northern Netherlands but the
principles of the Decretum Tametsi were adopted in the various provinces thereof. The Political Ordinance of 1 April
1580, which was enacted by the States of Holland, provided in s 3 for banns to be published, on three successive
Sundays or market-days, in church or in the council chamber of the city or town where the intending spouses
resided, and for their marriage to be solemnised by the magistrate or minister of religion ‘according to the forms in
use in the churches or which shall have been prescribed to the magistrates for that purpose by the States’.
‘Marriages’ not solemnised in accordance with s 3 were invalid. Similar legislation was enacted in the other
provinces of the Northern Netherlands.
[72] The provisions of the Political Ordinance on the point were received as law at the Cape when it was colonised
by the Dutch East India Company. Despite the reception of the Political Ordinance at the Cape it appears that from
1665, when the first resident clergyman was appointed, marriages were solemnised by a minister of the Church.
Before that date they were solemnised by the Secretary of the Council of Policy.
[73] As far as I have been able to discover, Holland was the first European jurisdiction to permit civil marriages. In
practice persons who chose to be married by magistrates were those who were not of the Reformed religion or,
‘who, being estranged from the orthodox church, hated ecclesiastical benediction’.
[74] Marriage law was secularised at the advent of the Reformation as the Protestant reformers did not regard
marriage as a sacrament. Brissaud refers to what he calls ‘this remarkable evolution’ by which marriage was
completely secularised. The point of departure for this, he says,
was in a theological, legal theory of which Saint Thomas Aquinas was perhaps the first to give the formula.
According to that writer, marriage could be regarded at one and the same time: 1st. As a contract of natural law
(a borrowing from the Roman writings, which understood by this the law which is given to man and to animals).
2d. The civil contract, that is to say, one governed by the Roman law as it was organised, so long as the Church
did not have the monopoly concerning questions relating to marriage. 3d. A sacrament, of which the contract
was the element and which could not exist without the latter. The civil marriage and the religious marriage are
separated in this analysis, whereas in former times they were not distinguished. These speculations, which had
no very great bearing so long as they remained shut up within the Schools, were propagated during the 16th
century by virtue of the favour shown them by the Renaissance and the Reformation; they were presented
before the Council of Trent by more than 20 prelates and theologians, and, a more serious thing, the jurists took
possession of them in order to make of them a weapon against the Church. From this they came to the
conclusion that marriage ought to be subjected to the Church insofar as it was a sacrament, to the State insofar
as it was a civil contract.
This development culminated, as far as France was concerned, in the adoption in the Constitution of 1791 of the
principle that
the law only considered marriage as a civil contract; the Church was free to set up the sacrament in establishing
the forms and conditions which might please it, the faithful were at liberty to respect its doctrines, but the State
had no power to bind itself to impose them upon all citizens without affecting their liberty of conscience. The
decree of September 20, 1792, organised the certificates of civil status and marriage; the latter must thenceforth
be executed before a municipal official in order to be recognised by the State.
[75] The principle that marriages had to be solemnised by a civil official was adopted in some of the provinces of the
Northern Netherlands after 1795 and became the legal position in the whole of what was now called the Kingdom of
Holland in 1809 when the Code Napoleon, with adaptations, was given the force of law by King Louis Napoleon.
landdrost: magistrate
heemraden: council member
[76] During the period between the two British occupations of the Cape, when the Cape was under the control of the
Batavian Republic, Commissioner General De Mist introduced the secular marriage before landdrost and heemraden
in the country districts and before the Court for Matrimonial and Civil Affairs in Cape Town. This change was,
however, repealed at the beginning of the second British occupation by a proclamation issued on 26 April 1806 by
Sir David Baird prohibiting civil marriages and providing that all marriages were ‘to be performed […] by an ordained
clergyman or minister of the gospel, belonging to the settlement’.
[77] The law relating to the solemnisation of marriages in the Cape was altered by Order in Council dated 7
September 1838. This order made detailed provision for the publication of banns, the issuing of special licences, the
establishment of a marriage register and the appointment of civil marriage officers where there was ‘not a sufficient
number of […] ministers [of the Christian religion] to afford convenient facilities for marriage’. By the Marriage Act 16
of 1860 the resident magistrates were made marriage officers and the Governor was empowered to appoint
marriage officers for Jews and Muslims. Similar legislation was passed in the other colonies which eventually made
up the Union of South Africa.
[78] The Marriage Act 25 of 1961 consolidated the laws governing the formalities of marriage and the appointment of
marriage officers and repealed some 47 Union and pre-Union statutes from the Marriage Order in Council of 7
September 1838 onwards. It is clear from a study of the provisions of the Marriage Act that it builds on the
foundations laid by the Council of Trent in 1563 and by the States of Holland in 1580. It is concerned solely with
marriage as a secular institution. Although it does not go as far as the French did in 1791 and 1792 and the Dutch
legislature thereafter in requiring all marriages to be solemnised by a civil official and not allowing clerics to
solemnise them, it clearly constitutes clerics who are marriage officers State officials for the purpose of bringing into
being a marriage relationship between the intending spouses which is recognised by the State.
[79] Indeed it is instructive to note that this way of seeing the matter is set forth by Henricus Brouwer (1625–1683), a
leading Roman Dutch writer, in his work De Jure Connubiorium, which was first published in 1665. In book 2, ch 27,
para 20 we find the following:
It is possible for someone indeed to call one marriage a political marriage and the other a church marriage
inasmuch as one is contracted in the face of the church and the other before a court. But if this distinction were
to be approved it proceeds from the incidentals of the marriage and is of no force if one has regard to the bond
of the marriage itself, honourableness, the legitimate status of the children who are born therefrom and all the
rights which the spouses obtain. Because the same legal position applies in both cases, the same dignity, the
same honourableness, the same bond. Indeed a marriage contracted in church can be called a political
marriage insofar as it is solemnised in the church by the authority of a magistrate through a delegated person,
namely a minister of God.
This analysis is clearly correct and as applicable today as it was in 1665 when it was first published.
[80] I have dealt in some detail with the history of the law of marriage because it throws light on a point of cardinal
importance in the present case, namely that the law is concerned only with marriage as a secular institution. It is true
that it is seen by many to have a religious dimension also, but that is something with which the law is not concerned.
Even though clerics are appointed marriage officers, when they solemnise marriages they do so in a twofold
capacity: first, as clerics, giving the benedictio ecclesiae to the couple and affording them the opportunity to take
their vows at a religious service; and, secondly, as State marriage officers, bringing into existence a secular legal
bond recognised by the State.
[81] But as s 31 of the Marriage Act makes clear, clerics who are marriage officers are not obliged to marry couples if
to do so would be against the tenets of their religion. Thus, to take an obvious example, a Roman Catholic priest
who is a marriage officer is not obliged to marry a couple one of whom is divorced and whose former spouse is still
alive. The Marriage Act contains a provision (s 28), which renders it lawful for a person to marry certain relatives of
his or her deceased or divorced spouse. This provision repeals the common-law rules that dealt with prohibited
degrees of relationship insofar as collaterals by affinity are concerned. These rules were based on the canon law
and, to the extent that they are still upheld by certain denominations, clerics belonging to such denominations would
be unwilling to solemnise marriages between such persons. Section 31 makes it clear that they are free to refuse to
do so. These examples also help to make clear the distinction between the secular institution of marriage which the
law regulates and the religious institution of marriage which is recognised in the Act.
[82] As I have said, we are concerned in this case only with the secular institution. Nothing that we say is intended to
deal with the religious institution. Indeed it would be inappropriate and improper for judges in a secular state to do
otherwise.
1. Is the focus in this extract on internal or external legal history? Give reasons for your answer.
2. Identify all the sources of law related to the institution of marriage mentioned in this extract and arrange them
chronologically. What can you conclude about the development of the South African law of marriage from this
chronological overview?
3. Why, in the opinion of the judge, was this historical overview of the institution of marriage so critical for the decision
that had to be taken in the case at hand?
Using the legal-historical method, legal historians have developed legal-historical frameworks for
understanding the development of law over time in different places. Such frameworks frequently
categorise the development of law into particular periods and distinguish particular schools of law
and legal philosophies. The framework commonly used to understand the roots of South African
law is set out in Figure 3.1 below.9
Figure 3.1 Overview of historical antecedents of South African law
The following sections discuss legal history according to legal developments in Roman times, the
Germanic period, the Middle Ages and the period of church or canon law. Each of these historical
periods had an impact on the eventual development of South African law. Chapter 4 focuses on later
developments leading up to the pre-apartheid era.
3.3 Roman law
Figure 3.2 The Roman Empire in 117 CE
REFRAMING
Imagine a small, agricultural community – one that does not enjoy the protections of the modern nation state. What
kinds of activities are conducted in such communities? What kinds of conflict would be likely to arise or what manner
of threats would the community seek to protect itself against? What would happen as the community expands?
Discuss these issues drawing in particular on the experience of students who come from rural areas.
Roman legal history is commonly divided into the following five periods:
• Ancient law (753 BCE–250 BCE)
• Pre-classical law (250 BCE–27 BCE)
• Classical law (27 BCE–284 CE)
• Post-classical law (284–527)
• Justinian law (527–565).
The ensuing discussion follows this categorisation.
3.3.1 Ancient law (753 BCE–250 BCE)
There are various theories and fables about the origin of Rome itself. Archaeological research
indicates that there were settlements in the area of Rome from about 1000 BCE. However, the first
period in which the Romans regulated law and order was 753 BCE–250 BCE.10 We do not know
much about this era and what we do know is based on folklore or tradition. During this time, Rome
was an ‘urban’ state ruled by kings. It appears that the king was regarded as the political, religious
and legislative leader. A council consisting of the aristocracy assisted the king. This council was
also known as the senate.
aristocracy: the highest class of people in a society
senate: the great council comprising members of the Roman aristocracy
equestrians: the cavalry
Rome was a farming community. Political and economic life was based on the possession of land
which was mostly in the hands of the aristocracy and the equestrians of the army. There were big
class differences between the aristocracy and the common people, many of whom worked for the
aristocracy.
Social life was interwoven with the family group. The head of the family (paterfamilias) had
authority (patria potestas) over his family members, as well as the right of life and death. He could,
for example, command the death of a child if that child acted in a manner that was not in accordance
with his rules.
Law and religion were interconnected. The law was mainly customary law, meaning that the law
comprised the rules of conduct and customs that were generally accepted and handed down over a
long period of time. Some of the kings issued legislation which dealt mostly with religious matters.
The senate and the popular assembly, an assembly of all Roman citizens, later also issued
legislation called senatusconsulta and plebiscita respectively.
The most important compilation of legal rules and written source of law in the ancient period was
the Law of the Twelve Tables (Lex Duodecim Tabularum) from approximately 451/450 BCE. This
legislation appears to have originated as a result of the struggle between the aristocracy and the
commoners. The commoners complained that the formal procedures of the law were inaccessible to
the common people – the law was regarded as a religious secret and it clearly favoured the higher
classes of society. The name Twelve Tables is derived from the fact that some of the legal rules were
written on twelve bronze plates that were placed in the market square to ensure that the law was
accordingly accessible to all.
public law: law that deals with a person’s relationship with the state
private law: law that deals with relationships between two or more persons
lex (pl leges): law(s)
talio: retaliation; an eye for an eye and a tooth for a tooth
The Twelve Tables dealt with various fields of public and private law,11 and tried to reconcile or
explain the more controversial areas of Roman customary law. The Tables consisted of a formal law
(lex) characterised by short, clear rules. For example, one of the rules was that a person who
intentionally burned down the building of another would be handcuffed, flogged and then thrown
into a fire. If it was accidental, the person had to compensate for damages and the punishment was
less severe. If someone permanently maimed the limbs of another, talio applied. If the person only
broke the limb of another, he had to pay 300 asse (a way of payment) for a free person and 150 asse
for a slave. There were also restraints on indulgence in luxury. For example, the number of flute
players at a funeral was restricted to 10, and the wailing women had to veil their faces and were
ordered not to cry too loudly. ‘Drinking laughter’ was to be restricted at the funeral meal and no
golden objects were supposed to accompany the dead to the so-called world of shadows.
The Twelve Tables also contained certain procedural rules. When a debtor had not paid a debt, he
or she could be tied up in the market square. He or she was allowed to have one loaf of bread a day.
This procedure had to be repeated three times. The creditor had to call out and ask if there was not
someone who wanted to redeem the debtor’s debt. If no one came forward, the creditor could sell
the debtor as a slave. Alternatively, the debtor’s creditors could draw-and-quarter him or her. This
means the person was drawn to the place of execution, and was disembowelled and cut into four
pieces. Each creditor could take his or her ‘pound of flesh’ home, from where the English saying is
apparently derived.
THINKING LIKE A LAWYER
In South Africa, it is not unusual to hear of incidents of so-called mob justice. Such incidents typically involve
communities taking the law into their own hands by assaulting an alleged criminal. Sometimes these attacks are fatal.
In a statement issued in June 2011, the Minister of Justice, Jeff Radebe, said: ‘Mob justice is a form of criminal
behaviour punishable under the law. Those who participate in these inglorious acts are just as guilty as those against
whom they act or seek to act.’12 Should the drawing and quartering of debtors described above be regarded as mob
justice?
Initially, the interpretation of the Twelve Tables was in the hands of the priests. However, during the
pre-classical and classical periods, jurists or lawyers wrote commentaries on the Twelve Tables.
These commentaries led to the expansion of the short rules and the further development of the
law.13 The importance of the Twelve Tables in the development of law can be summarised as
follows:
• It was the first synoptic and systematic compilation of the law.
• It ensured legal validity and unity.
• The codification took the rural background of that time into consideration.
• It was the first instance of the division between the law and religion. The codification was a
victory for the plebeians (ordinary people).
• The commentaries on the compilation of the law led to legal development.
3.3.2 Pre-classical law (250 BCE–27 BCE)
During the pre-classical period, the Roman Republic became a world power. Rome conquered the
mainland of Italy, parts of the Mediterranean coast and various other provinces in northern Africa
and Europe. Some of these areas were regarded as part of Rome, either as allies or provinces, while
other parts had a dependent relationship with Rome.
As with the ancient law of Rome discussed above, not much is known about the law in the early
pre-classical period. It seems as though there were certain requirements for a custom to be regarded
as a rule of customary law. The custom had to have been observed over a long period, it had to be
reasonable and its recognition was dependent on the tacit acceptance of the custom by the
population. Importantly during this time, a distinction was made between citizens of Rome and non-
citizens. This distinction also influenced legal development as will be explained below. The strict
law (ius civile) applied to Roman citizens, while the law of the magistrates (ius honorarium) applied
to all people, including citizens.
Skills exercise 3.2
1. Consider the following definitions:
• Ius civile: This was the strict, formalistic law that applied to Roman citizens. If the ius civile did not provide for a
particular case, a citizen had no legal remedy.
• Ius honorarium: This law was formulated by magistrates by way of edict or included laws not strictly defined in
statutes.
• Ius gentium: This was the law of all people – it was customary law that applied to Romans and non-Romans. It was
an informal law based on good faith (bona fides) and equity (aequitas). It was applied when Romans came into
contact with people from other groups and influenced the ius honorarium.
Would it be acceptable for modern South African law to distinguish between laws applicable to citizens and laws
applicable to non-citizens such as permanent residents?
2. Find the provision in the South African Constitution (Bill of Rights chapter) which deals with the right of access to
social security. In terms of this provision, who is entitled to the right?
3. The applicants in Khosa v Minister of Social Development; Mahlaule v Minister of Social Development14 were
Mozambican citizens who had obtained permanent residence in South Africa. However, because they were not South
African citizens, they could not access old-age and child-support grants in terms of the relevant legislation.
Deliberating on the meaning of the word ‘Everyone’, the Constitutional Court (per Mokgoro J) held as follows:
[46] The socio-economic rights in ss 26 and 27 of the Constitution are conferred on ‘everyone’ by ss (1) in each
of those sections. In contrast, the State’s obligations in respect of access to land apply only to citizens. Whether
the right in s 27 is confined to citizens only or extends to a broader class of persons therefore depends on the
interpretation of the word ‘everyone’ in that section. The applicants relied on s 25 of the Constitution, as well as
various other rights in the Bill of Rights, to argue that ‘everyone’ in s 27 included non-citizens and therefore also
(for the purposes of this case) permanent residents.
[47] This Court has adopted a purposive approach to the interpretation of rights. Given that the Constitution
expressly provides that the Bill of Rights enshrines the rights of ‘all people in our country’, and in the absence of
any indication that the s 27(1) right is to be restricted to citizens as in other provisions in the Bill of Rights, the
word ‘everyone’ in this section cannot be construed as referring only to ‘citizens’.
How would you classify the approach of the court on this issue in terms of the definitions above?
THINKING LIKE A LAWYER
In the Khosa case, can you describe the strategy that the applicants relied on to argue for an expansive or inclusive
definition of ‘everyone’ in section 27(1)(c) of the Constitution? Did the court affirm this strategy?
praetor (pl praetores): a Roman magistrate charged with the administration of justice15
The Twelve Tables and other laws (leges) were initially sufficient to satisfy the requirements of the
Roman legal community, but the law had to be adapted to the changing needs of the community in a
new era. These adaptations occurred with the institution of the role of the praetor.
Before a person could appear before a judge, he16 had to comply with certain requirements. For
example, he had to say certain formal words and take certain actions otherwise the case could fail.
Initially, the priests were the only people who knew these formulas and procedures, but by 304 BCE
these formulas were public knowledge. The formal procedures, however, did not comply with the
changing needs of the community and a new procedure was introduced for bringing cases before the
court. Two phases were distinguished – the first phase took place before the praetor and the second
before the judge. Before a person could put his case before the judge, therefore, he had to appear
before the praetor. The praetor was not a judge and could not make a final judgment. He had to
ensure that the parties complied with the correct formal procedures and that their claims were
correctly worded. The judge (a layperson) based his judgment only on the facts and then applied the
legal formula as provided by the praetor.
Although the praetor was not a judge, he was able to issue edicts in which he defined the legal
remedies that parties could use. The legal remedies introduced by the praetor and sustained over
time included the following:
bonorum possessio: ‘the possession of one’s property by another’20
actio legis Aquiliae utilis: Aquilian action ‘which was brought on general principles of justice in cases for which there
was no express legal provision’21 or an adapted Aquilian action
actio legis Aquiliae: Aquilian action or an action brought in terms of the Aquilian Act
actio in factum: an action granted on the facts and ‘general principles of justice in cases for which there was no
express legal provision’22
• Bonorum possessio: Someone who was not a Roman citizen could not become the owner of land.
The praetor introduced the legal remedy of bonorum possessio whereby the non-citizen was
given certain legal remedies to ward off the actions of third parties (apart from the real owner of
the land). If he kept the land for a certain period, he could become the owner by means of
prescription. We still have prescription today in South African law where the law protects
someone who is not the owner of land but who possesses the land for a period of 30 years. You
will learn more about this in property law. Although we inherited the concept of prescription from
Roman law, it is now regulated by legislation, namely the Prescription Act17 as many checks and
balances have been added through the centuries.
• Actio legis Aquiliae utilis: The actio legis Aquiliae, which was the action used to recover
patrimonial loss, did not provide for damages caused by spoiling something. The extension of the
action is described in a case where oil was added to wine – the good qualities of the product were
spoilt and the actio legis Aquiliae utilis was thus developed to accommodate this situation.18 The
actio legis Aquiliae also provided only for damages caused directly to an object by an object. The
action based on new facts was later extended to provide for an actio in factum which could be
instituted when someone freed another person’s slave by unlocking his cell – no damage was
caused to the slave him- or herself. The damage was based on the fact that the master lost his
slave whom he regarded as his property.19
Skills exercise 3.3
The actio legis Aquiliae derived from the praetorian times and its use in South African courts today is still being
developed. In the case of Transnet Ltd v Sechaba Photoscan (Pty) Ltd,23 for instance, a company instituted a claim
against Transnet for prospective loss of profits. Transnet had given Sechaba an indication that its tender to do some
printing for Transnet would succeed, but then awarded the tender unexpectedly to someone else. It later seemed that the
tender was awarded fraudulently. At paragraph 16, the Court held as follows:
[16] The idea that loss of profit is not recoverable in delict is not historically founded. Indeed, the converse is the
case. Moreover, it is commonly the subject of an award of damages for loss of earning capacity in personal injury
cases. Why should it matter that the injury is not physical but economic, as long as the loss is one of earning
capacity? Take the example of the owner of a taxi that is negligently damaged. He has a claim for the profit lost
while the vehicle is out of action. Can it make any difference if, subject to quantification, the delict is committed
when he has just bought the vehicle, before commencing business? I think not. Nor can it matter if the loss were
caused by fraudulent conduct, not negligence. Clearly, the loss would impair his earning capacity and that is part of
his patrimony. The claimant in the present case is a company. Once again, that can make no difference. Its
patrimony has been impaired by having the bargain that it was on the point of acquiring dishonestly snatched away.
1. Did the SCA affirm Sechaba’s claim for loss of profit?
2. Explain in your own words why the Court’s decision in the case developed the actio legis Aquiliae.
exceptio metus causa: an exception based on duress ‘which was brought on general principles of justice, in cases for
which there was no express legal provision’26
exceptio doli: an exception based on fraud ‘which was brought on general principles of justice, in cases for which there
was no express legal provision’27
exceptio pacti conventi: an exception brought on the assumption that another agreement existed that differed from the
one on which the action is based and ‘which was brought on general principles of justice, in cases for which there was
no express legal provision’28
restitutio in integrum: restitution to the original position
• Exceptions against actions based on the strict law, namely the exceptio metus causa, the exceptio
doli and the exceptio pacti conventi:24 Where an action instituted in terms of the strict law was
‘corrupted’ by duress or fraud, the exceptio metus causa and the exceptio doli respectively could
be raised. It was alleged thereby that the claimant had no action as there was no valid legal action
because of the duress or the fraud. The exceptio pacti conventi was raised when a person alleged
that another agreement existed that differed from the one on which the action was based.
Restitutio in integrum was granted when someone completed a legal action on the basis of a
fraudulent presentation of facts or under duress. Both persons were placed in the same position as
if no action had taken place. In the South African law of persons, restitutio in integrum is still
used today as a remedy when a minor concludes a contract without his or her parent’s permission.
25
The functions of the praetor were to ensure that law and order prevailed by adjusting,
supplementing, correcting and bringing the law in line with the community’s general sense of
justice. For example, a person who caught a thief red-handed could kill the thief immediately. The
praetor changed this practice based on the changing values of the community so that a thief was
condemned to pay four times the amount of the value of the thing stolen. Talio, referred to earlier,
was also abolished.
The praetores therefore adapted the law to suit the changing circumstances and the needs of the
time on the basis of good faith and equity. The law was flexible, informal and rational. This equity
principle was accepted into many legal systems and forms one of the foundations of Roman-Dutch
and English law, among others. Of importance for Roman law itself was the creation of a new legal
procedure that was flexible and that made the law more accessible. The praetorian law had such
great influence at that time that it gradually replaced the strict law.
The pre-classical era also recognised the need for new interpreters of the law and jurists emerged
to take on this role. The functions and activities of Roman jurists were similar to those of today’s
lawyers. Jurists explained the rules and formal procedures to make the law more accessible to the
ordinary person. Even after the law had become less formal, people still required advice, for
instance on whether or not to make an application to the praetor for the granting of a new action.
The jurists were not concerned with the facts of the matter and therefore issued only conditional
advice. Once the jurists had interpreted the law, they had to advise their clients on further action and
assisted them to prepare their case. They had to ensure that their clients complied with all the
prescribed formalities of an action and also drafted the legal documents that had to be in writing.
Pre-classical jurists did not appear in the court as advocates generally do today. A public speaker
(orator) put the case to the court. Only a few jurists were also public speakers. The jurist Cicero was
such an exception. The jurists also gave informal education to students who followed them
wherever they went. After jurists had given their clients advice, students asked questions and
discussed the legal advice given to the clients.
Skills exercise 3.4
1. Think about the functions and key role players involved in the administration of justice during the pre-classical period.
Design a diagram that demonstrates their interrelationships.
2. Who fulfils the same functions in the contemporary South African system of legal administration? Design a second
diagram where you identify the most salient contemporary role players and their relationships.
The law was seen as the art of the good and equitable (ius est ars boni et aequi). The jurists based
their ideas on social values such as equity, good faith (bona fides), effectiveness, goodwill and
humaneness. Notably, unlike today, they gave their legal advice for free. The nature of the law was
casuistic and they only addressed problems that were brought to their attention. The law was
unsystematic in spite of the influence of the methods of Greek legal science. They distinguished
legal terms from one another and applied the Greek methods of logical reasoning to find solutions to
legal problems. Jurists were held in esteem by society, a fact which helped to establish their
authority as lawyers. The most important jurists of the pre-classical period were Catus and Cicero.
3.3.3 Classical law (27 BCE–284 CE)
The classical period is known for its development of the law as an instrument to promote equity.29
During this period, Emperor Augustus established the Principate. Although the institutions of the
Roman Republic were retained, the government became a monarchy where all power vested in the
hands of the emperor with the senate acting as his mouthpiece. Various attempts were made to
‘Romanise’ the entire Roman Empire. These attempts worked well in Spain, northern Africa and the
south of France. The Christian influence was not very strong at the time, but became stronger
towards the end of the classical period. As a result of the Christian influence, the concepts of family
and the father’s authority changed. The position of slaves improved and the father’s right over life
and death was taken away.
From the beginning of the classical period, the emperor enjoyed a position of power. As the
republican structures deteriorated, the emperor gained more power. Gradually, the following
proverbs developed: ‘That which pleases the emperor, bears validity of law’ and ‘The emperor is
above the law’. However, Roman law developed rapidly as a result of the accommodating attitude
of the emperors towards the law. Imperial legislation and jurisprudence became important and the
work of jurists broadened the scope of the law as they also served on an advisory council that
advised the emperor. In this way, jurists became actively involved in the development of the law.
Initially, the emperor had no legislative authority. He could, however, hand in legislative
proposals to the senate. As a magistrate, he had the right to issue edicts called constitutiones. These
edicts later had the same validity as legislation. The emperor was not bound to the dividing line
between strict law and the law of magistrates. He had the power to develop new legal institutions
and to adapt the law to changing circumstances. His edicts could take on different forms. Edicts
were at this point mostly concerned with matters of public law.30
The emperor sometimes acted as a judge of the first instance or as a court of appeal. His decisions
(decreta) were applicable only to parties before the court. He was able to create law, supplement
deficiencies in the law or he could find a solution if the law was unclear on a certain matter.
Gradually, it became customary to refer to previous decisions to find a solution in a new matter –
this was the first manifestation of the law of precedent which also applies now in South African
law.31 In this way, a decision could eventually become a general legal norm.
Sometimes, an emperor had to supply written answers or rescripts to enquiries by private people.
These were known as rescripta. These answers were usually brief and clearly formulated, and the
emperor was advised by his council of jurists.
The emperor formulated new rules of law if necessary. Orders by the emperor to officials, for
example those in the provinces, were known as mandates (mandata). They applied to an official’s
service and were applicable during his term of office only. Sometimes the emperor issued general
imperial rules (leges generales). During the time of the absolute monarchy, the emperor sometimes
received the petitions of private people or officials, which he had to answer (known as pragmaticae
sanctiones).
personality principle: the law of the area where a person is born is applied
territoriality principle: the law of the country you visit is applied
During this period, all cases before the courts were handled by a single judge and the role of the
praetor became less important. The law of the people (ius gentium)32 developed further as a result
of the growth of international commerce and the need to manage general interests. When a person
toured or lived in an area other than his own country of birth, the personality principle was
applied. This means that the law of the area where this person was born was applied to him or her. A
Roman in Germania (present-day Germany) would have fallen under the jurisdiction of Roman law
and a German in Rome under Germanic law. The personality principle is in contrast to the
territoriality principle which means that a person is bound by the rules of the land – that is, the
country that he or she visits.
REFRAMING
When you travel to another country, do you take the law of your country of origin with you in line with the personality
principle? If you commit a crime in another country, for instance, which law would apply? Think of the well-publicised
Dewani case in which a citizen of the United Kingdom was accused of murdering his bride on their honeymoon in
Cape Town. He subsequently returned to the United Kingdom. Extradition proceedings had to be instituted in order for
him to return to South Africa to stand trial. Why could he not be tried in England for the crime?
Suppose Dewani was married in Sweden and drafted a joint will with his wife in the Netherlands soon after they got
married. He concluded a contract with a German with regard to land in Switzerland on the plane on his way to South
Africa for his honeymoon. His wife was murdered in South Africa. Which law do you think would apply to the marriage,
the will and the contract?
The work of the jurists became important in the classical period as they were granted the right to
give advice (ius respondendi). They continued to give answers to legal questions, but these answers
or advices carried more weight than before. Emperor Hadrian (117–138) ordered that judges be
bound by a majority of advices. In the case of conflicting advices, the judge had the discretion to
decide which responsa he would apply. The purpose of Hadrian’s order was to ensure legal
certainty. This is an ongoing quest even today in modern South African law. More generally, jurists
were able to create law through their ius respondendi and they ensured stability in the law-making
process. Classical jurists analysed different legal texts and abstracted legal principles from them. In
so doing, they also created law.
Skills exercise 3.5
In the case of Mayelane v Ngwenyama and the Minister of Home Affairs,33 Mdjadji Florah Mayelane is the applicant and
the first respondent is Mphephu Maria Ngwenyama. The second respondent is the Minister of Home Affairs whose
department is responsible for the registration of all marriages. The following is a quote from the court case:
Mayelane v Ngwenyama and the Minister of Home Affairs
8. The applicant married the late Hlengani Dyson Moyana in accordance with customary law and tradition at
Nkovani Village on the 1st January 1984. Her husband passed away on the 28th February 2009. The marriage
was not registered.
9. The deceased is alleged to have married the first respondent according to customary law on the 6th January
2008.
10. This marriage was confirmed by the headman of first respondent’s village.
11. The applicant was unaware of the fact that her husband had entered into another marriage according to
customary law until after his passing.
12. It is common cause that the second marriage was not preceded by an application to a court for an order
approving a contract to regulate the future matrimonial property system of the two marriages, as provided for in
section 7 of the Recognition of Customary Marriages Act 120 of 1998.
13. The applicant contended that the second marriage was null and void because of the failure to obtain such an
order.
14. The first respondent advanced the argument that the fact that her marriage to the deceased was properly and
publicly performed in accordance with customary law was sufficient to establish an unassailable second
marriage entered into by the deceased.
15. In the light of the competing claims by the applicant and the first respondent, the second respondent’s offices
refused to register the applicant’s marriage to the deceased.
[…]
21. Section 7 emphasises the fact that spouses in a customary marriage have equal status and capacity.
22. It is clear that this section is aimed at protecting both the existing spouse or spouses and the new intended
spouse by ensuring that the husband must obtain the court’s consent to a further customary marriage, albeit that
such consent is expressed in proprietary terms.
23. Both the existing spouse and the intending further spouse have a vital interest in having their relative proprietary
positions safeguarded by the procedure that is laid down in subsection (6). Most customary marriages are
concluded by persons whose access to worldly goods is limited and whose financial security may be severely
prejudiced by an earlier or the conclusion of another marriage if such fact is not disclosed to the spouses and
dealt with by the contract and the court’s approval.
24. The failure to comply with the mandatory provisions of this subsection cannot but lead to the invalidity of a
subsequent customary marriage, even though the Act does not contain an express provision to that effect.
Cronje and Heaton argue in South African Family Law, 2nd ed., p. 204 that the court’s intervention would be
rendered superfluous – which the Legislature could not have intended – if invalidity did not result from a failure
to observe subsection (6). See further S Human, op.cit., who endorses this view.
25. A further argument that a failure to comply with the subsection leads to invalidity of the subsequent further
customary marriage arises from the peremptory language of the provision: The word “must”, read with the
provisions of subsection (7)(b)(iii), empowering the court to refuse to register a proposed contract, indicates that
the Legislature intended non-compliance with the statute to lead to voidness of a marriage in conflict with the
provision.
[…]
27. The most persuasive consideration must however be the gross infringement of the first or earlier spouses’
fundamental rights: To respect of their dignity, physical and emotional integrity, their right to protection from
abuse – in this instance both emotional and economic or material –; their right to be treated on an equal footing
with their husband as decreed by the Act; their right to equal status as marriage partners arising from the Act;
their right to marital support from their husband; their right to marital intimacy and trust, which rights flow
naturally from those guaranteed by the Act and the Constitution. A gross infringement of these rights would be
committed if the husband were to be allowed to enter into a further marriage without their knowledge and
acquiescence.
28. On the other hand, the intending spouse in a further marriage is, by the same token, entitled to be fully informed
prior to the conclusion of such marriage of her future husband’s existing marriages and the full financial and
emotional consequences thereof.
[…]
30. In addition, the rights of any children born from the earlier marriage and still dependent upon their parents may
obviously be vitally affected. The court faced with the question whether a further marriage should be approved
must take their interests into account as a constitutional obligation arising from section 28(2) of the Constitution.
Their mothers would usually be in the best position to assess their needs and to enlighten the court in that
regard, but children of sufficient maturity will also fall into the class of “having a sufficient interest” intended by
subsection (8) of the Act.
31. Seen in this light, it is clear that the conclusion that a further marriage concluded without observing the dictates
of the Act is void rather than voidable, is to be preferred to the argument raised by Bennett, Customary Law in
South Africa, 2004, p 247 and 248. He states, after (correctly) concluding that a further marriage in conflict with
a court’s order refusing to register a proposed contract would amount to contempt of court, that: “The procedure
was imposed to protect wives; if they do not protest, then their long-term interests may be better served by
treating the relationship with the husband as a valid marriage.” In note 39 the learned author adds: “This
argument will also accommodate the strong probability that few husbands will comply with the Act. To deem all
ensuing unions void will work hardship on the wives and children when the husbands die or institute divorce
proceedings.”
32. With respect to the learned author this argument cannot be upheld in the light of the Legislature’s clear intention
to accord existing wives the full protection of the Bill of Rights in the context of customary marriages. An existing
wife may very often be entirely dependent upon her husband together with her children, may be unaware of her
rights, may be illiterate or too timid or impecunious to seek legal advice and may suffer the economic and
emotional deprivation brought about by a subsequent marriage long before a separation as a result of death or
divorce. To rely on an absence of protest by a wife who may live in fear of rejection – not to mention the children
born of an earlier union – would be to consign the issue of voidability to a most uncertain and indeed arbitrary
test. The Legislature certainly did not intend to create a morass of uncertainty.
Explain how the position of the Court in this matter is similar and how it is different to the
position of a judge in the classical period of Roman law considering conflicting advices
formulated by the jurists.
THINKING LIKE A LAWYER
One of the most difficult aspects of learning to think like a lawyer is confronting the fact that lawyers can reach
different conclusions on the legal implications of the same set of facts. This leads some students to believe
erroneously that law is all about a person’s subjective opinion. Why is it possible to have more than one ‘right’
interpretation of legal facts? How does the law deal with conflicting legal opinions?
The majority of academic jurists did not fall under the imperial administration and were involved in
teaching and education. The most well-known jurists during this period were the so-called five great
jurists – Gaius, Papinian, Paul, Ulpian and Modestinus. Gaius wrote various works of which the
Institutiones, a student textbook, was the most important. This book later served as a model for the
Institutiones of Justinian. It was the first systematic book of law and was characterised by a clear,
systematic and simple exposition. We still find references to Gaius in books and court decisions –
the references are mostly to Gai Inst 3.1 where 3 refers to the book and 1 to the paragraph. In Cape
Town Municipality v Table Mountain Aerial Cableway Co Ltd,34 for instance, Van Zyl J, in
considering whether the claim relating to property excluded the land or premises on which the
facilities in question had been erected, stated the following:
inaedificatio: building on someone else’s land with your own materials or someone else’s materials
By the principle of inaedificatio they became part of such land of premises and likewise constitute immovable property.
See Gaius Institutes 2.73 (superfices solo cedit: ‘that which is erected on the ground becomes part of it’). This principle
still applies in South African law.
3.3.4 Post-classical law (284–527)
The post-classical period coincided with the Dominate or the period of the absolute monarchy.35
From the time of Emperor Diocletian, the emperor became sole ruler. At the beginning of this
period, the Roman Empire was a unitary state where no distinction was made between the
conquerors and the conquered. Diocletian divided the Roman Empire into an eastern and a western
section. Under Constantine these sections were united, but they were again divided in 395 under
Emperor Honorius in the west and Emperor Arcadius in the east. In the eastern section, Byzantium
(later Constantinople and today Istanbul) was the capital. Because of the conflict between the two
emperors, the two empires developed separately. The Germanic tribes began to migrate all over
Europe in 406 and their continued attacks led to the fall of the Western Roman Empire in 476. At
the time, the West was characterised by economic and moral decline, corruption and extortion by
officials. While spying was used to combat corruption, it led to even more corruption. The Eastern
Roman Empire experienced a less turbulent time compared to the West and continued to exist until
1453 when it was conquered by the Turks.
Skills exercise 3.6
Read the preamble of the Prevention and Combating of Corrupt Activities Act36 and then answer the questions below.
Preamble
WHEREAS the Constitution enshrines the rights of all people in the Republic and affirms the democratic values of
human dignity, equality and freedom;
AND WHEREAS the Constitution places a duty on the State to respect, protect, promote and fulfil all the rights as
enshrined in the Bill of Rights;
AND WHEREAS corruption and related corrupt activities undermine the said rights, endanger the stability and
security of societies, undermine the institutions and values of democracy and ethical values and morality, jeopardise
sustainable development, the rule of law and the credibility of governments, and provide a breeding ground for
organised crime;
AND WHEREAS the illicit acquisition of personal wealth can be particularly damaging to democratic institutions,
national economies, ethical values and the rule of law;
AND WHEREAS there are links between corrupt activities and other forms of crime, in particular organised crime
and economic crime, including money-laundering;
AND WHEREAS corruption is a transnational phenomenon that crosses national borders and affects all societies
and economies, and is equally destructive and reprehensible within both the public and private spheres of life, so
that regional and international cooperation is essential to prevent and control corruption and related corrupt activities;
AND WHEREAS a comprehensive, integrated and multidisciplinary approach is required to prevent and combat
corruption and related corrupt activities efficiently and effectively;
AND WHEREAS the availability of technical assistance can play an important role in enhancing the ability of States,
including by strengthening capacity and by institution-building, to prevent and combat corruption and related corrupt
activities efficiently and effectively;
AND WHEREAS the prevention and combating of corruption and related corrupt activities is a responsibility of all
States requiring mutual cooperation, with the support and involvement of individuals and groups outside the public
sector, such as organs of civil society and non-governmental and community-based organizations, if their efforts in
this area are to be efficient and effective;
AND WHEREAS the United Nations has adopted various resolutions condemning all corrupt practices, and urged
member states to take effective and concrete action to combat all forms of corruption and related corrupt practices;
AND WHEREAS the Southern African Development Community Protocol against Corruption, adopted on 14 August
2001 in Malawi, reaffirmed the need to eliminate the scourges of corruption through the adoption of effective
preventive and deterrent measures and by strictly enforcing legislation against all types of corruption;
AND WHEREAS the Republic of South Africa desires to be in compliance with and to become Party to the United
Nations Convention against Corruption adopted by the General Assembly of the United Nations on 31 October 2003;
AND WHEREAS it is desirable to unbundle the crime of corruption in terms of which, in addition to the creation of a
general, broad and all-encompassing offence of corruption, various specific corrupt activities are criminalized,
BE IT THEREFORE ENACTED by the Parliament of the Republic of South Africa, as follows:–
Corruption remains a social problem which legislators seek to prevent through legal
controls. Summarise the reasons for the adoption of the Prevention and Combating of
Corrupt Activities Act in your own words.
Roman law continued to exist in the West, but was similarly characterised by decline, the so-called
vulgarisation of the law.37 The law in this period is sometimes referred to as vulgar law. There was
increasing resistance against the vulgarisation process of the law in the Eastern Roman Empire
where the works of the classical Roman jurists were still studied. There was some legal
development during this period, but not much. The edicts in the West were characterised by verbose
(long-winded) arguments, bad grammar, unclear formulation and moral lessons that were used to
‘brighten up’ the law. The clear and logical rules that characterised the classical period were absent
and gradually the need to summarise and compile the imperial laws arose.38 Although imperial law
gained importance during the post-classical period, the existence of customary law was still
recognised. Constantine recognised customary law as a legal source on condition that it did not
conflict with legislation or the force of reason.
Post-classical jurists generally followed the majority of the five great jurists and did not attempt
to interpret the law themselves. They regarded the works of the five great jurists, in particular the
Institutiones of Gaius, probably because of its simplified exposition of the law, as ‘guide books’ or
‘recipe books’. Jurists used these works to meet the needs of the time only. Sometimes, extensive
adaptations were made and many forged copies of the works of the five great jurists were in
circulation. Complicated rules were simplified, the original meaning was changed or lost, and the
law became vague as a result. The Citation Act (Lex Citationis of 426) was issued because of the
confusion about which jurists could be cited. This Act was an attempt to restore the importance of
the works of the five great jurists and to prevent further simplification of the law.
3.3.5 Justinian law (527–565)
Justinian became the new emperor of the Eastern Roman Empire in 527. His ambition was to restore
the Roman Empire to its former glory. As a result of his energy and ideals, the empire was
strengthened in both the political and the juridical spheres. He reconquered northern Africa, Spain
and some parts of Italy. He not only distinguished himself in the military and religious fields, but
also played a seminal role in the development and codification of Roman law.
In 528, Justinian ordered that the imperial legislation as contained in the imperial compilations39
of the post-classical period be codified. He appointed a 10-member commission to systematise all
the imperial edicts and to exclude discrepancies. The Codex Justinianus was compiled within one
year – a record time. After the compilation of this Codex, new edicts were issued. In 529, 50 edicts
were compiled to resolve the differences between the opinions of the jurists – they served as an
annexure to the Codex and were known as the Fifty Decisions (Quinquaginta Decisiones).
The juristic law, meaning the law of practising jurists, was initially not codified. However, in 530,
Justinian appointed another commission for this purpose. They were asked to gather the juristic law,
eliminate repetitions and contradictions, and adjust the law to changing circumstances. They were
not allowed to give preference to one jurist over another. They completed the work in a record time
of three years and published it as the Digesta in 533. The Digesta consisted of 50 books, based
mainly on private law, except for the first title that dealt with general doctrines of the law (D 1.1’s
title is Justice and Law).40 This title was ignored for many years in the study of South African law
as it considers justice and equity, concepts which did not sit well with apartheid law. In 530
Justinian also ordered the compilation of an elementary legal textbook consisting of four books,
subsequently known as the Institutiones. This set of books was based on Gaius’ Institutiones.
The Codex Justinianus/Codex Vetus was soon outdated and a revised edition was issued in 534
containing edicts from the time of Hadrian to that of Justinian. The Codex consisted of 12 books and
included church law, private law and criminal law. After the publication of the Codex, Justinian
issued new edicts which were published as compilations made after his death in the form of the
Novellae.41 In 1583, Gothofredus published a set of all the Justinian compilations. The title of this
set is the famous Corpus Juris Civilis.
A particular method of reference is used for Justinian’s works. Sometimes, a legal practitioner
will find these references in court decisions and books and may be asked by a judge to address him
or her on certain texts of the Corpus Iuris Civilis. Today, we are fortunate that there are translations
from the Latin text of the Digesta and the Institutiones available to assist us in our task. However,
you still have to know how to find the relevant text as the translation is usually compiled in the
same manner as the original text, for example:
• D 3.1.5.6 refers to Digesta book 3, title/chapter 1, lex/fragment 5 and paragraph 6.
• C 3.4.6.5 stands for Codex book 3, title/chapter 4, constitutio 6 and paragraph 5.
• If the reference is to D 3.1.5pr or C 3.4.6pr, the ‘pr’ refers to the principium or the unnumbered
introductory sentence of the relevant paragraph before the lex/constitutio.
• I 4.3.5 refers to Institutiones book 4, title/chapter 3 and paragraph 5. The Institutiones has only
three references and the reference may also be I 4.3pr.
• N 4.5 refers to Novellae book/number 4 paragraph 5.
Justinian tried to take preventative measures to ensure the preservation of the law in his
codifications. Out of fear that more words would jeopardise legal certainty, he prohibited the writing
of commentaries on the Digesta. The use of abbreviations was forbidden, as well as new
compilations of his codifications. He did, however, allow verbal translations. Regardless of all his
prohibitions, adaptations of his codifications appeared. The codifications were applied in the
Eastern Roman Empire until the fall of the Empire in 1453.
Skills exercise 3.7
Write a 500-word essay in which you argue for or against the value of studying Roman law in the twenty-first century. You
must provide sound reasons for your stance.
3.4 Germanic tribes and legal development
References have been made to the Germanic emperors and the influence of Roman law on
Germanic law. Germanic law is regarded as the predecessor of customary laws in Europe in the
Middle Ages that were also influenced by canon law (or church law). There is some dispute whether
Germanic law played any significant role in or had any influence on the development of European
law or subsequent development of South African law. There are, however, some traces of Germanic
influences in South African law. For example, reference has already been made to the need to have
written contracts. Some writers trace the concept of the ‘right of use’ of land back to Germanic
feudal law. Moreover, there are also some similarities between Germanic law and African
customary law.
Figure 3.3 Map of Germanic tribes 486 42
PAUSE FOR REFLECTION
munt: the control of a Germanic head of family over his family members
Kruger indicates that parental authority in South African law is derived from Germanic law rather than Roman law:43
Parental authority in Roman-Dutch law differed radically from parental authority in Roman law, whereas there were
numerous similarities between parental authority in Germanic and Roman-Dutch law. The Roman-Dutch concept of
parental authority differs from the patria potestas of Roman law in the following respects:
• The most prominent difference between the Roman-Dutch and Roman concepts of parental authority can be
found in the nature of parental authority. As indicated above, parental authority in Roman law vested the
paterfamilias with a kind of quasi-ownership in respect of his children. Patria potestas was exercised for the
benefit of the paterfamilias, and its continuance depended on the life and decision of the father and not on the
needs and interests of the child. The protective character of parental authority in Roman-Dutch law is in sharp
contrast with the absolute control which the paterfamilias had over his children in Roman law. In Roman-Dutch
law, parents were obliged to care for and educate their children. This protective character of parental authority in
Roman-Dutch law had its origin in Germanic law. As indicated above, legal capacity in Germanic law depended
on the ability to bear arms. Since women and children were physically unable to bear arms, they were subjected
to munt. Munt had to be exercised in the interests of the child.
• The second difference between the Roman-Dutch concept of parental authority and the patria potestas of Roman
law lies in its duration. The legal nature and development of parental authority Roman patria potestas lasted until
the death of the father, unless it was terminated before that date by emancipation, adoption or the marriage of a
daughter. In Roman-Dutch law, on the other hand, parental authority was automatically terminated when the child
reached a certain age or when the child got married. As indicated above, the termination of parental authority
when the child reached a certain age, or when the child got married, also has a Germanic origin.
• The third difference between the Roman and Roman-Dutch concepts of parental authority can be found in the
person that exercises the authority. In Roman law patria potestas was exercised by the paterfamilias. The
mother, who was herself subject to potestas, had no authority in respect of her children. In contrast, parental
authority over the person of the child was shared by both parents in Roman-Dutch law, while the father was
vested with guardianship. As indicated above, the origin of this rule can also be found in Germanic customary
law.
The development of Germanic law can be divided into three periods, namely the early Germanic
law (up to the fifth century, more or less coinciding with the development of Roman law); the
Frankish period (fifth to ninth centuries) and the feudal period (ninth to twelfth centuries).
3.4.1 Early Germanic law (up to 400)
Not much is known about the development of Germanic law during the early period. Records of
Germanic society generally begin only after the Germanic people came into contact with the
Romans. The word ‘Germanic’ refers to people (excluding the Romans) who settled in middle-
eastern Europe from the beginning of the Christian era. There were many Germanic tribes that
functioned independently from one another. Some of the tribes were constantly engaged in wars
with one another, as well as with the Romans. In 476, the Germanic peoples conquered Rome.
The Germanic tribes were initially mainly nomadic and lived from hunting and herding.
Gradually, by approximately the third century, the tribes settled and turned to agriculture. The
family was known as the sib and was based on blood relationships. The head of the family, like the
Roman head of the family, had the right of life and death over his family members. Land belonged
to the tribe and the head of the tribe divided it among the tribe’s members.
The class system consisted of a higher class (the aristocracy), freemen, half-freemen, slaves and
strangers. Wealthy people and those who distinguished themselves in the military field formed the
aristocracy and had various privileges. The rest of the tribe, who were allowed to attend the
meetings of the tribe called the thing (ding) and who performed military service, were called
freemen. Half-freemen were people who volunteered to join a tribe during a war or slaves who were
set free privately. They were not allowed to participate in the proceedings of the thing but had full
legal capacity and could marry. Slaves were people who were captured during wars or those who
became slaves because they could not pay their debts. Slaves were sometimes given their freedom at
meetings of the thing. Strangers had no rights except that they enjoyed the protection of their host.
Marriages were monogamous and marriage was not allowed before the age of 20 years. A dowry
system existed that was similar to lobola in African customary law.
REFRAMING
Think about the criteria for participation in the proceedings of the thing. How do these criteria compare with
participation in tribal meetings under African customary law? Discuss this issue by drawing on the experience of
students who have attended the meetings of tribal authorities.
The political system consisted of the head of the tribe, sometimes referred to as a king, who could
also act as a judge. Some of the tribes chose a leader only in times of war. All members of the tribe
attended the tribal meeting or thing, held once or twice a year. Before the meeting began, the leader
had to ask whether the thing was gathering at the right time and place (usually on a sacred hill) and
whether all members of the tribe were present. The area was then cordoned off with a rope. A ban
on violence was proclaimed before the meeting began, in which all members promised to forgo
retaliation and violence for the period of the meeting. Members nevertheless attended the meeting
with their weapons. If they approved a matter, they would beat their weapons. They indicated
disapproval by grunting. During these meetings, members of the tribe elected a leader, made
decisions on war and peace, imposed the death penalty and freed slaves. The thing also acted as the
highest court in the system.
A trial rested on trust and mistrust. To establish whether someone was speaking the truth or not,
he or she could be subjected to certain tests of fire and water. Fire was reserved for the aristocracy.
They had to walk blindfolded over a bed of coals or had to hold a red-hot iron. If their wounds
healed, they had the trust of the meeting. Other persons were subjected to the water test (warm or
cold). Their hands were put into boiling water. If their hands did not burn, their evidence was
believed. Other persons were thrown into cold water, for example a river. If they floated, they had
the trust of the meeting. If they drowned, then they had in any case not told the truth.
THINKING LIKE A LAWYER
The method of ascertaining facts in early Germanic law is very different to the methods lawyers use to establish facts
today. To prove claims before a court of law, lawyers are required to submit various forms of evidence. Over the
years, a detailed body of law has developed as to what constitutes admissible evidence and what is inadmissible. The
evidence must be such that it meets the standard of proof for criminal (beyond reasonable doubt) and civil trials (on a
balance of probability). The submission of such evidence underlines the nature of contemporary dispute resolution as
a rational system. We discuss these issues in detail in chapter 9. Do you think the early Germanic methods of
ascertaining the facts in a dispute were rational?
The legal order was known as the peace. Breach of the peace led to a feud. A breach of the peace
affected the whole family. If the whole tribe’s peace was disturbed, the case had to be brought
before the thing, in which case the disturber of the peace could be banned or sentenced to death.
Smaller breaches of the peace could lead to retaliation (talio). If the peace of one of the members of
the sib was disturbed, the whole family retaliated. In later years, peace could be restored by the
payment of redemption money (soengeld). Clearly, the legal system was primitive and based on the
law of the thing, as well as customary law that was handed down from one generation to another.
The law was bound to the tribe; it was simple, concise and formalistic.
3.4.2 Frankish period (400–800)
guild: an association of craftspeople or merchants
During the Frankish period, the community was mainly rural and agricultural. Individual ownership
of land was gradually recognised and merchants flourished in the old Roman towns. Various
craftspeople began to form groups, prefiguring the establishment of the guilds of the Middle Ages.
Customary law was still applied, but it was increasingly influenced by Christian doctrine. For
example, the head of the family’s right over life and death was abolished and a man could not
unilaterally dissolve his marriage.
A monarch ruled over large groups of Germanic people. In times of war, he had absolute power.
Otherwise, he could issue legislation only if the people approved it. The royal court consisted of the
king, head officials, priests and the king’s followers from the aristocracy. A council assisted the king
in general policy matters, but he was not compelled to consult them. The thing was held in some
regions; in times of war it proceeded formally. The monarchy was divided into counties, a similar
system to South Africa’s present-day provinces. The king appointed a court as he was responsible
for the administration of justice and the general administration of his area. The counties were
divided into districts, each with its own leader (or count). Local issues were dealt with in the market
square and smaller misdemeanours were also tried during these sessions. Under Charles the Great,
the inhabitants had to take an oath of allegiance to the king. The king himself promised that he
would also be subject to the law and that he would not act arbitrarily.
Skills exercise 3.8
Read the following extract from the Constitution and then answer the questions.
7. Rights
This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country
and affirms the democratic values of human dignity, equality and freedom.
The state must respect, protect, promote and fulfil the rights in the Bill of Rights. The rights in the Bill of Rights are
subject to the limitations contained or referred to in section 36, or elsewhere in the Bill.
8. Application
1. The Bill of Rights applies to all law, and binds the legislature, the executive, and the judiciary and all organs of
state.
1. Which provision(s) of the Constitution would you use to argue that the South African state is also ‘subject to the law’?
2. How are the provisions in the Constitution similar to or different from the rule that the Germanic king was subject to
the law? (Hint: Think about the separation of powers.)
Apart from the compilations of vulgar law as discussed above, compilations were also made of
Germanic customary law. These compilations were known as the Laws of the Barbarians (Leges
Barbarorum)44 and were mainly tribally bound. As a result, they differed from one tribe to another.
The compilations were territorially bound, meaning that they were applicable to anyone who lived
or passed through the area. This is known as the territoriality principle mentioned above.
Sometimes, the kings ratified customary law rules by including them in legislation (capitularia).
3.4.3 Feudal period (800–1100)
The feudal period was characterised by a breakdown in the established order that had gained
momentum by the end of the Frankish period. Various reasons can be given for this breakdown. The
central authority deteriorated after the death of Charles the Great. In 843 his kingdom was divided
into three parts by the Treaty of Verdun and in 855 these kingdoms were further divided. The
invasions of the Vikings increased during this time and the state could not provide the necessary
protection. By the tenth century, anarchy generally prevailed. As a result, the liegemen gradually
received more authority and became liege lords or vassals. For the sake of protection, people
gathered around the powerful liege lords which resulted in the gradual establishment of small states.
Feudalism was the main form of political organisation during this era. Feudal relationships
emerged when the king gave certain people (liege lords or vassals) land to win their goodwill. This
had already happened during the Frankish era. This privilege was known as feudum/fieffe/fief or
beneficium. Freemen accepted the authority of liege lords by swearing an oath of loyalty and, in
return, the liege lord promised to protect them against invaders. This practice was known as
vassality.
Feudalism thus led to the development of a distinct hierarchical relationship. At the head was the
king, who had authority over the whole area. He gave land to his direct liege lords. This privilege
was initially bound to a certain period, but was later transferred from one generation of a family to
the next. The liege lords eventually obtained ownership of the land. In turn, the liege lords gave land
to vassals in exchange for service and loyalty. The vassals had a form of usufruct over the land.
Their right was inheritable and could be transferred. The feudal relationship was a personal
relationship, was created by a formal procedure and on the taking of an oath.
Vassals had to make certain promises to the liege lord. The promise could be for one or more of
the following:
• to serve in the military of the liege lord
• the right of the liege lord to marry the daughter of the vassal
• personal assistance by the vassal
• the right of the liege lord to administer the land of the vassal and to take possession of his harvest.
Evidently, with its emphasis on feudalism, this period required new legal rules to be developed to
regulate the feudal relationship. The rules of Roman and Germanic law described above were
wholly insufficient. The new rules were known as feudal law and were recorded, among others, in
books about feudal law (Libri Feodorum) that were studied by the jurists of the Middle Ages,
together with Justinian’s codification.
Other sources of feudal law included rules pertaining to peace on land called landvredes. These
rules were mostly restricted to priests, women and children or were concerned with maintaining
religious festivals or days of fasting. Similarly today, we still find rules that pertain to certain
communities or groups. In the Western Cape Province, for example, we have had for many years a
second New Year’s day to allow the Kaapse Klopse to engage in various festivities in the city of
Cape Town. This holiday is not acknowledged outside the Western Cape Province.
Rights to land called kostumeregte or landregte were applicable to larger areas and were based
mainly on customary law. They are comparable to our provincial legislation today which are rules
that apply in a specific province only. Legislation dealing with urban areas, stadregte or keuren, was
another example of law from the feudal period where an emperor or liege lord sometimes granted a
city or town the right to issue its own rules, for example rules dealing with trade, fires, streets and
pollution. Today, South African municipalities also have law-making powers and their laws are
referred to as municipal by-laws.
The keuren were recorded in the book of the city. They were sometimes transferred from one city
to another and cities had to pay large sums of money to buy these rules or laws. The different guilds,
for example merchants, craftspeople, bakers and brewers, developed their own legal rules which
influenced the development of present-day mercantile law. The king or liege lord could also grant
privileges (immunitates) to specific people or institutions such as another liege lord, churches,
cloisters or merchants. These privileges involved the establishment of the boundaries of trade, the
right to gather toll, the administration of justice or the exclusion of certain people from taxes. Some
privileges that were given ignored the boundaries of states. An example is the Authentica Habita,
which allowed students to move freely in their quest for teachers without paying toll or taxes.
3.5 The High to Late Middle Ages (1000–1500)
The way in which law and order was regulated in the High to Late Middle Ages had a profound
influence on the development of the legal rules that we use today. Germanic customary law and
legislation made by the kings and other rulers still played an important role during this era and were
never replaced by Roman law. Church law, with its Roman law basis, coexisted alongside
customary law and the rules influenced each other. As far as worldly matters were concerned, the
church lived and ruled according to Roman law. The popes also made appeals to Roman law during
the investiture strife. This was strife between the pope and successive emperors about who was to
wield the greater power.
REFRAMING
You have already encountered the relationship between religion and law in Skills exercise 3.1 above. Now think more
broadly about the relationship between religion (specifically Christianity) and law today. How have Christian doctrines
influenced the development of particular institutions and, thereby, the content of substantive laws? Think about
President Zuma’s comments at the launch of a road safety and crime awareness campaign in KwaMaphumulo in
2012:
As Africans, long before the arrival of religion and [the] gospel, we had our own ways of doing things. Those were
times that the religious people refer to as dark days but we know that during those times, there were no orphans
or old-age homes. Christianity has brought along these things.45
Think about what laws are involved, for instance, with regard to orphans or old age. Collect other newspaper clippings
on the relationship between religion and the state and bring them along to class to discuss.
In the twelfth and fifteenth centuries, there was a renewed interest in the study of Roman law which
was studied by various ‘schools’. These schools were not physical or even institutional structures as
we would think of today, but rather schools of thought in the sense that they consisted of jurists who
studied Roman law in a similar manner or thought about the law in a similar manner. The schools
that studied Roman law during this period were the Glossators, the School of Orléans, the Post-
Accursiani and the Post-Glossators.
There were various reasons for the renewed interest in Roman law. Legend has it that a copy of
the Digesta was discovered in the city of Pisa. This copy was probably stolen during the looting of
the city of Amalfi. In addition, various economic, political, juridical, religious and other reasons
contributed towards this renewed interest. The Lombardic cities experienced political and economic
growth in the northern parts of Italy which resulted in the merchants and guilds becoming
increasingly influential. Evidently, these changing and differing needs required a common or shared
legal system that had to deal with changing circumstances.
The centre for legal studies in the twelfth century was the University of Bologna. It is not clear
why Bologna was chosen, but it appears as though the study of law had the blessing of the emperor.
Legal education of that time, which took place in the context of the broader establishment of
universities, rested on the establishment of a type of guild by lecturers and students. Education and
research were both important and good students sometimes acted as lecturers. The study of law
continued for five years and once students passed their examinations, they became a doctor of law.
The lecturers gave lectures twice a week on the Digesta. Legal studies at the University of Bologna
was quite popular and by 1179 the church had to forbid the monks from studying law as they were
all leaving the cloisters to study law at this university.
Generally, legal education and research during this period rested on certain key assumptions. It
was said, for example, that the truth could be found only if it was based on a written text. In the case
of the law, this was the legislative work of Justinian or the Corpus Iuris Civilis as it was later
known.
THINKING LIKE A LAWYER
One of the hallmarks of thinking like a lawyer is that it involves reference to different forms of legal authority, such as
the Constitution, legislation, case law, the common law, African customary law and so on. In what way, if any, are
such references to legal authority references to truth?
The following sections briefly discuss the four different schools of thought of the High to Late
Middle Ages, namely the Glossators, the School of Orléans, the Post-Accursiani and the Post-
Glossators.
3.5.1 Glossators
The jurists of the twelfth century were known as Glossators and they worked at the University of
Bologna. Their name is derived from the method of work they used. They wrote glosses (glossa) or
brief descriptive notes between the lines in the text of the Corpus Iuris Civilis (Justinian’s
codification). The glosses had different functions, namely:
• to explain the meaning of certain words (expositio verborum)
• to refer to other texts (allegationes)
• to refer to short general rules (generalia/notibilia)
• to distinguish between different terms (distinctiones)
• to ask questions with regard to a certain text (quaestiones).
Sometimes, Glossators wrote an ongoing commentary on a specific section of the Digesta, for
example the application of a certain action by the courts (apparatus). They made summaries of
certain sections of the Corpus Iuris Civilis (summae) or provided intensive discussion of texts
highlighted with examples (quare). They also made summaries of differences of opinions that
existed among the Roman jurists (dissensiones).
Irnerius was regarded as the father of the Glossators. He was followed by four jurists known as
the four doctors. They were Bulgarus, Martinus, Jacobus and Ugo. Other Glossators were Rogerius,
Bassianus and Placentinus, Hugolinus, Roffredus, Azo,46 Odofredus and Accursius. Accursius
compiled all the different Glossators’ notes and the compilations were known as the Glossa
Ordinaria or Accursian Glossa. In the end, he received more acknowledgement than his well-
known teacher Azo and increasingly reference was made to this work instead of the original Corpus
Iuris Civilis.
Skills exercise 3.9
Read the following excerpt from an article by Kruuse:
court a quo: the court of the first instance
pacta sunt servanda: agreements must be kept
The Volks v Robinson decision by the Constitutional Court surprised more than a few people, especially since the
Cape High Court (the Court a quo) found that the omission from the definition of ‘survivor’ in s 1 of the MSSA of the
words ‘and includes the surviving partner of a life partnership’ at the end of the existing definition was
unconstitutional and invalid. The Court a quo found that the law’s failure to recognise and protect opposite-sex life
partnerships violated the right to equality, particularly in that it discriminated against opposite-sex life partners on the
basis of marital status and infringed her right to dignity. In his judgment, Davis J noted that failing to recognise
domestic partnerships ‘render[ed] the guarantee of equality somewhat illusory insofar as a significant percentage of
the population [was] concerned’. However, when the matter was referred to the Constitutional Court, the Court
rejected the strong submission by the Centre for Applied Legal Studies (CALS) – supported by evidence – that for
many cohabitants (especially women), the choice to marry is not their own. Notwithstanding, the Court based its
finding on what Goldblatt critically calls a ‘libertarian notion of autonomy’ which is underpinned by the same
assumptions underlying the common law notion of pacta sunt servanda in the law of contract. In other words, the
Court took for granted that women in co-habiting relationships had the freedom within an unmarried opposite-sex
life relationship to (using a colloquialism) ‘call the shots’. Similarly, Schäfer characterised the judgment as one
where the Court adopted an ‘objective model of choice’ in which the Court only considered the presence or absence
of legal impediment to marriage between couples in their class (i.e. opposite-sex and same-sex).47
1. Assume you were given an assignment on domestic partnerships in which you are required to ascertain the current
legal position. What would be the dangers of relying only on Kruuse’s discussion of the Volks v Robinson decision in
both the Cape High Court and the Constitutional Court for this purpose?
2. In similar vein, what do you think were the dangers of relying only on the Glossa Ordinaria to ascertain the legal
position on a particular topic?
3. What would be the danger of relying on your fellow students’ notes of the previous year for studying any of your
modules at the university?
Legal development had begun to stagnate in Bologna by the end of the thirteenth century. The
Glossators referred to the Accursian Glossa only and no longer studied the Corpus Iuris Civilis.
Any person who held a different opinion from the Accursian Glossa was ignored and students who
had their own opinions were reprimanded. As a result, people were increasingly dissatisfied with the
way in which law was studied and many who did not agree with the methods of the Glossators
joined the School of Orléans in France.
3.5.2 School of Orléans
Students had the opportunity to study canon law (church law) at the University of Orléans in France.
After students had completed their studies, they were known as a doctor of both laws (Roman and
canon law – doctor utriusque iuris) because canon law was based on Roman law.
The method of work of the School of Orléans was similar to that of the Glossators. Their glosses
were known as the Glossa Aureliensis in contrast to the Glossa Ordinaria. They wrote their own
notes on the Corpus Iuris Civilis and studied it as the original source. They severely criticised the
Glossa Ordinaria. The members of the School of Orléans had more historical insight than their
predecessors as they studied the rules in the Corpus Juris Civilis in the context of the time when it
was written. They tried to systematise and adapt Roman law to the circumstances of their own time
and derived general definitions, rules and principles from the rules in the Corpus Juris Civilis.
The two most important members of the school were Jacques de Révigny and Petrus de
Bellaperche/Bellepertica. The School of Orléans is today famous for having laid the foundation for
the term ‘legal person’,48 as well as for the action of the negligent causation of pain and suffering,
both of which continue to be used in South African law. De Révigny wrote that a father might claim
twice the amount of his damages if his daughter was scarred in the face as (according to him) it
would make her less attractive for the marriage market. The text was later used as one of the
foundations of the action for pain and suffering.49 The school also laid the foundation of the rules of
international private law, in other words rules that would apply if, for example, someone in South
Africa concludes a contract of sale for a piece of land situated in Canada with a person in Germany.
3.5.3 Post-Accursiani
While the School of Orléans was flourishing, a group of jurists continued the work of the Glossators
in Italy. They were known as the Post-Accursiani.50 A distinction was made between theorists and
practitioners. The theorists, people who were academically inclined, later started to write longer
commentaries on the Glossa Ordinaria. The most important theorist was Dinus, later known as the
father of the Commentators. Wilhelm Durantis was a member of the practitioners. The practitioners
made Roman law usable for practice and they wrote mostly on legal procedure.
3.5.4 Post-Glossators
Legal studies revived in Italy in the fourteenth century. A new group of jurists with a new approach
appeared, sparked by the work of Dinus discussed above. They were known by different names such
as:
• Post-Glossators as they were regarded as the successors of the Glossators
• Commentators as they wrote commentaries on the law
• Conciliators as they wrote advices (consilia)
• Bartolistae and Baldistae after the most important members of the school, Bartolus and Baldus.
The Post-Glossators studied mainly the Glossa Ordinaria and wrote commentaries on them. They
differed in this respect from the School of Orléans. However, they not only studied Roman law, but
also legal practice, customary law, stadregte and landregte, as well as canon and feudal law. In so
doing, they gave a wider interpretation to the text. The method of work entailed that they studied
both the Roman law and its applicability in practice. This was known as the mos italicus. They did
not study the historical development of a text. The approach where the old sources were studied was
known as the mos gallicus. The Post-Glossators wrote that the law rested on reason and that it forms
part of the nature of man. This laid the foundation for the later interpretations of natural law.
Later schools, such as the Humanists, criticised the Post-Glossators for being long-winded and
verbose. Cuiacius, for example, said the Post-Glossators were ‘long-winded and drawn-out in
simple matters, in difficult matters silent and in uncertain matters evasive’.51 The Post-Glossators
are nevertheless important because they laid the theoretical foundation for the integration and
systematisation of Roman law and Germanic customary law. The most important Post-Glossators
were Dinus, Cinus, Bartolus, Baldus and Salicetus.
3.6 Canon law
Since 306 with the establishment of the Christian empire by Constantine, the Christian religion had
been generally accepted within the boundaries of the Roman Empire. The church gradually became
politically more powerful. By the Middle Ages it had established its power in nearly every walk of
life. The practice of penance and the payment of redemption money played an important role in this.
The church regulated everyday life from the day of a person’s birth until his or her death. As has
been stated before, the church lived and ruled according to Roman law. The church realised that
rules were needed to regulate the structures and organisation of the church as well as any conflict
between church and worldly matters.
canon law: legal and normative rules issued by the Roman Catholic church
Canon law can generally be described as those legal and normative rules issued by the Roman
Catholic church to regulate matters:
• peculiar to the church sphere, for example church matters such as the finances of the church,
relationships between monks and so forth
• arising from the relationship between the church and the state, such as Sunday regulation or
religious holidays
• with regard to the relationship between the church and the secular sphere outside the boundaries
of the church, for example penitence, wills, family relationships, the poor, and ethical problems
such as adultery and sodomy.52
Roman law was not the only source of canon law. The Bible, especially the first five books, and the
writings of the church fathers were the most important among these other sources. Still other
singular sources were edicts issued by general church meetings of bishops (canones), papal decrees
(decretales), which were more or less the same as imperial edicts, and legislation issued by kings for
the church (nomoi). The church recognised a legal rule as customary law if it had been obeyed
generally for more than 40 years, and if it was reasonable and not against the good morals or
legislation of the church. Various compilations were made of church law, for example the Decretum
Gratiani and the Corpus Iuris Canonici. The most important Canonist was Gratianus, the author of
the Decretum Gratiani.
The influence of canon law on the broader legal system at the time, and even today, is far-
reaching. For example, the supranational nature of canon law forms one of the foundations of
modern international law,53 which is also an important source of South African law.54 The concept
of a ‘state’, such as the state of South Africa, is partially derived from the structures of the church
because the church was administered as a state. Canon law rested on the principles of equity and
good faith, as did the work of the praetor. This resulted in canon law’s amending of criminal law
and criminal procedure in that inhumane penalties were mitigated. Perjury, however, was taken
seriously. Canon law modified the strict formalistic nature of civil procedure and this influence is
still observable in South African law of procedure today. This is so because canon law influenced
English law of procedure and Roman law of procedure was received into South African law via
English law.
COUNTER POINT
de veritate dicenda: the truth must be spoken
ex officio: official
ius commune: the Roman law received in Europe
In South Africa, the right to silence is an important constitutional safeguard in the law of criminal procedure. Section
35(3)(h) of the Constitution provides that ‘[e]very accused person has a right to a fair trial, which includes the right […]
to be presumed innocent, to remain silent, and not to testify during proceedings’. In a journal article on the historical
origins of the right to silence, Theophilopoulos speculates on the possible role of canon law – among other possible
sources – as follows:
There are three differing interpretations of the historical origin of the silence principle. The Wigmore-Levy
orthodox theory characterises the development of a silence principle as a resistance by the English accusatorial
common law courts to the inquisitorial procedures of the ecclesiastical and prerogative courts. This antipathy was
directed against the de veritate dicenda procedure or, as it was familiarly known in England, the ex officio oath
process. The ex officio oath was a self-incriminatory oath of inquiry that forced the individual to swear truthfully
to all examining questions, while being kept in ignorance of the identity of the accuser, the nature of the complaint
and the substance of the evidence. In Wigmore’s classical account the privilege against self-incrimination
developed as a defensive procedural rule and was triggered by the religious and political state-promoted
persecutions of the sixteenth and seventeenth centuries. The privilege crept into the procedures of the common
law courts indirectly as a result of a confusion and association of ideas. Levy generally follows Wigmore’s
chronology, but with an important difference. He argues that the groundswell of antagonism against the ex officio
oath has far deeper roots in the medieval common law courts. The privilege is a common law invention intended
to protect the indigenous accusatorial criminal procedure against erosion by a continental inquisitorial process.
The battle line between the rival systems is drawn around the legality and jurisdictional reach of the ex officio
oath.
In strong contrast to the orthodox school, the recent Helmholz-Macnair canon law theory suggests that the
development of a privilege against self-incrimination arose not in common law but in canon law. It was not the
invention of the common law lawyer, as proposed by Levy, but a defensive principle of the inquisitorial trial
process and directed at judicial misuse of certain controversial rules of canon law. According to Macnair, the
danger that oath-swearing, self-incrimination and perjury represented for the Christian soul was always part of
the religious canon law debate and was never a common law principle until well into the seventeenth century.
Helmholz demonstrates that the roots of the privilege are to be found in the ius commune, an early medieval
synthesis of Roman and canon law. By the late sixteenth century the English ecclesiastical courts were making
regular use of a canon rule against self-incrimination, which was subsequently and gradually assimilated into
common law practice.
The adversarial theory suggested by Langbein argues that the accused’s right to silence must be clearly
separated from the witness’s privilege against self-incrimination. The origin of the right to silence is more
accurately placed at the end of the eighteenth century. As a practical and workable principle of criminal
procedure, the accused’s right to silence coincides with the rise of an adversarial mode of criminal justice. A
reformed trial process gradually sidelines the accused and places increasing importance on the procedural role
assigned to the defence counsel. Langbein is therefore sceptical of Wigmore’s rather vague claim that the
privilege creeps into the common law criminal trial process indirectly and as an association of ideas.55
Canon law also influenced the law of marriage, law of succession and the law of contract.56 As a
result of the work of the Christian philosophers of the Middle Ages, the idea originated that a person
should not be punished for more than he or she did – only the imbalance had to be corrected. This
resulted in the penal nature of actions for damage in the Roman law changing to pure actions for
damage – only the real damage had to be compensated for. Where one person caused grief to
another by mutilating him or her, the practice of confession in the Middle Ages allowed the priest to
order the culprit to pay redemption money (placatio lesi) to the injured. It was binding on a person’s
conscience – if the person did not act, he or she could, for example, be denied a Christian burial.57
Skills exercise 3.10
This chapter has provided a broad overview of legal developments spanning about 1 000 years. We have emphasised
throughout the people and institutions that generated legal rules and others who interpreted or elaborated on such rules.
Your attention has also been drawn to the various collections of legal rules that were compiled at various points.
1. Design a mind map that captures these developments on a single page.
2. What is the importance of collections of laws?
3. Which institutions perform the function of collecting and updating laws in South Africa at present?
THIS CHAPTER IN ESSENCE
1. The historical function of law
1.1 Law should be studied in context.
1.2 Rules are necessary to secure order and resolve conflict.
2. External legal history, internal legal history and legal-historical frameworks
2.1 External legal history includes all the different factors that may have had an
influence on the development of law in a particular period.
2.2 Internal legal history refers to the development of material or substantive law.
2.3 The legal-historical method is an exploration of internal legal history in the context
of external legal history.
2.4 Legal-historical frameworks categorise the development of law into particular
periods and distinguish particular schools of law and legal philosophies.
3. Roman law
3.1 Ancient law (753 BCE–250 BCE)
• The law was mainly customary law and comprised rules of conduct and
customs that were generally accepted and handed down over a long period of
time.
• The most important compilation of legal rules and written source of law in the
ancient period was the Law of the Twelve Tables (Lex Duodecim Tabularum).
3.2 Pre-classical period (250 BCE–27 BCE)
• The Roman Republic became a world power. A distinction was made between
citizens of Rome and non-citizens.
• Ius civile was the strict, formalistic law that applied to Roman citizens.
• Ius honorarium was formulated by magistrates by way of edict or included laws
not strictly defined in statutes.
• Ius gentium was the law of all people – it was customary law that applied to
Romans and non-Romans. It was an informal law based on good faith (bona
fides) and equity (aequitas).
• The praetores were Roman magistrates charged with the administration of
justice. The legal remedies introduced by the praetores and still in use today
include the bonorum possessio, the actio legis Aquiliae utilis, the exceptio
metus causa, the exceptio doli and the exceptio pacti conventi.
• Jurists emerged to interpret the law. The most important jurists of the pre-
classical period were Catus and Cicero.
3.3 Classical law (27 BCE–284 CE)
• The classical period is known for its development of the law as an instrument to
promote equity.
• As a magistrate, the emperor had the right to issue edicts called constitutiones
that later had the same validity as legislation.
• The work of jurists broadened the scope of the law as they served on an
advisory council that advised the emperor. The work of the jurists became
important as they were granted the right to give advice (ius respondendi).
• The most well-known jurists during this period were the so-called five great
jurists – Gaius, Papinian, Paul, Ulpian and Modestinus.
3.4 Post-classical law (284–527)
• The post-classical period coincided with the Dominate or the period of the
absolute monarchy. Diocletian divided the Roman Empire into an eastern and a
western section.
• Roman law continued to exist in the West, but was characterised by decline,
the so-called vulgarisation of the law or vulgar law.
• Post-classical jurists generally followed the majority of the five great jurists and
did not attempt to interpret the law themselves.
• The Citation Act (Lex Citationis of 426) was an attempt to restore the
importance of the works of the five great jurists and to prevent further
simplification of the law.
3.5 Justinian law (527–565)
• Justinian played a seminal role in the development and codification of Roman
law.
• In 528, Justinian ordered that the imperial legislation be codified. The
compilations included the Codex Justinianus, the Quinquaginta Decisiones, the
Digesta and the Institutiones.
4. Germanic tribes and legal development
4.1 Early Germanic law (up to 400)
• In 476, the Germanic peoples conquered Rome.
• All members of the tribe attended the tribal meeting or thing.
• The legal system was primitive and based on the law of the thing, as well as
customary law that was handed down from one generation to another.
4.2 Frankish period (400–800)
• A monarch ruled over large groups of Germanic people. In times of war, he had
absolute power. Otherwise, he could issue legislation only if the people
approved it.
• Compilations made of Germanic customary law were known as the Laws of the
Barbarians (Leges Barbarorum).
4.3 Feudal period (800–1100)
• The feudal period was characterised by a breakdown in the established order
that had gained momentum by the end of the Frankish period.
• The new rules were known as feudal law and were recorded in books about
feudal law (Libri Feodorum) that were studied by the jurists of the Middle Ages,
together with Justinian’s codification.
5. The High to Late Middle Ages (1000–1500)
5.1 Glossators
• Glossators were the jurists of the twelfth century who worked at the University
of Bologna. They wrote glosses (glossa) or brief descriptive notes between the
lines in the text of the Corpus Iuris Civilis (Justinian’s codification).
• Irnerius was regarded as the father of the Glossators. He was followed by
Bulgarus, Martinus, Jacobus and Ugo.
• Accursius compiled all the different Glossators’ notes in the Glossa Ordinaria or
Accursian Glossa.
5.2 School of Orléans
• Students studied canon law, which was based on Roman law, at the University
of Orléans in France.
• The method of work of the School of Orléans was similar to that of the
Glossators. Their glosses were known as the Glossa Aureliensis.
• The two most important members of the school were Jacques de Révigny and
Petrus de Bellaperche/Bellepertica.
• The School of Orléans is today famous for having laid the foundation for the
term ‘legal person’, as well as for the action of the negligent causation of pain
and suffering, both of which continue to be used in South African law. The
school also laid the foundation of the rules of international private law.
5.3 Post-Accursiani
• The Post-Accursiani continued the work of the Glossators in Italy.
• The most important theorist was Dinus.
• Wilhelm Durantis was a member of the practitioners. The practitioners made
Roman law usable for practice and wrote mostly on legal procedure.
5.4 Post-Glossators
• Legal studies revived in Italy in the fourteenth century. A new group of jurists
called the Post-Glossators with a new approach appeared.
• The most important members of the school were Bartolus and Baldus.
• The Post-Glossators studied mainly the Glossa Ordinaria and wrote
commentaries on them. They studied both the Roman law and its applicability
in practice. This was known as the mos italicus.
• The most important Post-Glossators were Dinus, Cinus, Bartolus, Baldus and
Salicetus.
• The Post-Glossators are important because they laid the theoretical foundation
for the integration and systematisation of Roman law and Germanic customary
law.
6. Canon law
• Canon law can generally be described as those legal and normative rules issued by
the Roman Catholic church to regulate matters peculiar to the church sphere,
matters arising from the relationship between the church and the state, and matters
relating to the relationship between the church and the secular sphere.
• Roman law was not the only source of canon law. Other sources included the Bible,
the writings of the church fathers, edicts issued by general church meetings of
bishops (canones), papal decrees (decretales) and legislation issued by kings for
the church (nomoi).
• Various compilations were made of church law, for example the Decretum Gratiani
and the Corpus Iuris Canonici.
• The most important Canonist was Gratianus, the author of the Decretum Gratiani.
• The influence of canon law is far-reaching.
Notes
1 Kleyn, D.G. 2000. The role and function of Roman law in South African legal education. In Spruit, J.E.,
Kamba, W.J. and Hinz, M.O. (Eds). Roman Law at the Crossroads, pp. 77–78.
2 Ibid at 75.
3 Lewis, C.T. and Short, C. 1993. A Latin Dictionary, p. 375.
4 Ibid.
5 Ibid.
6 Balatseng, D.M. 2000. Roman law: To assist law reform and law development. In Spruit, J.E., Kamba, W.J.
and Hinz, M.O. (Eds). Roman Law at the Crossroads, p. 7 at 9 and 12.
7 Van Zyl, D.H. 1979. Geskiedenis van die Romeins-Hollandse Reg, pp. 2–4; see also Du Plessis, P. 2010.
Legal history and method. Fundamina, 16:64.
8 2005 (3) SA 329 (SCA).
9 There is more information available on the development of the European law than on the development of the
African customary law and therefore more emphasis will be given to the development of the European law. This,
however, does not deny the importance of the development of the African customary law at all. See in this regard Du
Plessis, W. 1992. Afrika en Rome: Regsgeskiedenis by die kruispad. De Jure, 25:289 at 290–291.
10 The discussion in this section is generally based on the following works: Berman, H.J. 1983. Law and
Revolution; Borkowski, A. and Du Plessis, P. 2005. Textbook on Roman Law 3rd ed.; Gerbenzon, P. and Algra, N.E.
1987. Voortgangh des Rechtes 6th ed.; Hahlo, H.R. and Kahn, E. 1968. The South African Legal System and its
Background; Mousourakis, G. 2003. The Historical and Institutional Context of Roman Law; Robinson, O.F. 1997.
The Sources of Roman Law; Robinson, O.F., Fergus, T.D. and Gordon, W.M. 1987. An Introduction to European
Legal History; Spruit, J.E. 1994. Enchiridium 4th ed.; Stein, P. 1999. Roman Law in European History; Thomas,
J.A.C. 1976. Textbook of Roman Law; Van Zyl, D.H. 1979. Geskiedenis van die Romeins-Hollandse Reg; Watson,
A. 1974. Law Making in the Later Roman Republic; Wieacker, F. 1988. Römische Rechtsgeschichte.
11 See ch 6 for a full discussion of public and private law.
12 SAPA. 2011. Mob justice is a crime: Radebe. Times Live, 29 June. [Online].
Available at: http://www.timeslive.co.za/local/2011/06/29/mob-justice-is-a-crime-radebe [12 January 2012].
13 There are also references to the Twelve Tables in Justinian’s Digesta and Institutiones.
14 2004 (6) SA 505 (CC).
15 Lewis and Short supra n 3 at 1436.
16 Women could not approach the courts – they could do so only through their husbands or fathers. This is
similar to the position in African customary law, although in both Roman and African customary law this rule would
apply to all persons under the authority of the head of the family. See Bennett, T.W. 2004. Customary Law in South
Africa, p. 166.
17 68 of 1969 (the ‘Prescription Act’).
18 Van Zyl, D.H. 2003. History and Principles of Roman Private Law, the translation of footnote 358 at p. 445.
19 Cf. I 4.3.16 in Feenstra, R. 1982. Vergelding en Vergoeding, p. 24.
20 Lewis and Short supra n 3 at 246.
21 Ibid at 1946.
22 Ibid.
23 2005 (1) SA 299 (SCA).
24 You will learn more about exceptions in the modules dealing with the law of contract and the law of civil
procedure.
25 For more on the modern application of the restitutio in integrum, see Boezaart, T. 2010. Law of Persons 5th
ed.
26 Lewis and Short supra n 3 at 1946.
27 Ibid.
28 Ibid.
29 See also Van den Bergh, R. 2010. A shared law. Fundamina, 16:443.
30 The Constitutio Antoniniana (212), for example, granted citizenship to all citizens of the Roman Empire. See
ch 6.
31 Today, we have the rule of precedent where the courts are bound by decisions of previous courts – see ch 8.
An example of such a decision is where Emperor Marcus ordered that a creditor could put in a claim for the recovery
of money owed to him only by means of legal action – if he took the law into his own hands, he could lose his claim.
32 This is the predecessor of international law discussed further in chs 4 and 5.
33 Case No 29241/09 (North Gauteng High Court) delivered 24 March 2010; [2010] JOL 25422 (GNP).
34 1996 (1) SA 909 (C) at para 917D.
35 On the post-classical period, see Borkowski and Du Plessis supra n 10 at 18–23; Mousourakis supra n 10 at
5–6 and 321–347; Robinson supra n 10 at 17–20; Spruit supra n 10 at 193–197.
36 12 of 2004 (the ‘Prevention and Combating of Corrupt Activities Act’).
37 New research on this period seems to indicate that although there was a decline, it was not as bad as was
described by Roman authors of later periods. For a discussion on the law in the post-classical period, see Borkowski
and Du Plessis supra n 10 at 50–52; Mousourakis supra n 10 at 349–395; Spruit supra n 10 at 198–206 and 227–
266; Stein supra n 10 at 24–32.
38 Three important compilations of imperial law are the Codex Gregorianus, the Codex Hermogenianus and the
Codex Theodosianus.
39 Known as the Codex Gregorianus, Codex Hermogenianus and Codex Theodosianus.
40 Digest Book 1 Title 1.
41 These compilations consisted of the Collectio Graeca (Greek compilation), Epitome Iuliani and the
Authenticum.
42 This map of Europe after the fall of Rome depicts the distribution of the Germanic tribes and the extent of the
Eastern Roman (Byzantine) empire in 486. It is one of the maps from Shepherd, W.R. 1923. Historical Atlas, p. 50.
43 Kruger, H. 2004. The legal nature and development of parental authority in Roman, Germanic and Roman-
Dutch law: A historical overview. Fundamina, 10:89 at 111–112.
44 Lex Salica – customary law of the Salian Francs; Lex Ripuaria – this was applicable to tribes living in the
Ripuarian area (today the Rhine-Mousal area) and showed Salic and Frankish characteristics; Ewa ad amorem was
a brief discussion of Frankish law; Lex Frisionum was a record of the law that applied to the Frisians – it was similar
to the Lex Ripuaria and dealt, inter alia, with retaliation money, for example if a person stabbed another’s arm or hip,
he had to pay 16 solidii; Lex Saxonum – a record of Anglo-Saxon customary law and similar to the Lex Ripuaria;
Longobardian legislation – later recorded as the Lombarda – corresponded with the king’s legislation and was
proclaimed in collaboration with the thing. The Lombarda’s wording was clear and corresponded with the Anglo-
Saxon records. Examples of these rules were if someone knocked out the tooth of a slave, he had to pay the master
of the slave 16 solidii. The retaliation money of a freeman was 900 solidii. The worshipping of trees was forbidden
and a foster father could not marry his foster daughter.
45 Mdletshe, C. and Ndlovu, A. 2011. Now for the gospel according to Zuma. Times Live, 21 December.
[Online].
Available at: http://www.timeslive.co.za/politics/2011/12/21/now-for-the-gospel-according-to-zuma [16 January
2012].
46 A saying developed around Azo’s reputation, namely that ‘He who does not know Azo, has no success in
court’.
47 Kruuse, H. 2009. ‘Here’s to you, Mrs Robinson’: Peculiarities and paragraph 29 in determining the treatment
of domestic partnerships. SAJHR, 25:380.
48 Read more about this term in Boezaart supra n 25.
49 Feenstra supra n 19 at 32.
50 Van Zyl supra n 7 at 126–128.
51 Ibid at 140.
52 Ibid at 160.
53 See the discussion in ch 6.
54 See the discussion in ch 5.
55 Theophilopoulos, C. 2003. The historical antecedents of the rights to silence and the evolution of the
adversarial trial system. Stellenbosch Law Review, 14:161 at 163–164.
56 Canon law influenced natural law, the Post-Glossators as well as the Roman-Dutch law writers such as De
Groot, Huber and Van Bijnkershoek.
57 The Dutch abolished many canon law rules in the sixteenth century. The United Provinces of the Netherlands
seceded from the Holy Roman Empire due to Protestantism and tried to cut all ties with Rome and its laws.
Chapter 4
The historical functions of law: developments
after 1500
4.1 Introduction
4.2 The European contributions to legal development
4.2.1 France
4.2.2 Germany
4.2.3 Spain
4.2.4 England
4.2.5 The Netherlands
4.3 Historical legal developments in South Africa
4.3.1 Common law
4.3.1.1 The period 1652–1795
4.3.1.2 The period 1795–1806
4.3.1.3 The period 1806–1827
4.3.1.4 The period 1828–1910
4.3.2 African customary law
4.3.3 Religious legal systems
4.3.4 Historical development of the law in an international context
4.3.5 Historical development of the law in a regional context
This chapter in essence
4.1 Introduction
Chapter 3 explained the importance of legal history for contemporary lawyers. It also outlined the
genesis of Roman law and subsequent legal developments until more or less the end of the Middle
Ages, including the canonical period. This chapter discusses the development of relevant legal
systems in different historical contexts from 1500 onwards until recent times. It focuses on the
development of law and order in different countries in Europe, as well as in South Africa. You will
also explore the development of law on the African continent in a regional context since South
Africa forms part of the African Union (AU) and the Southern African Development Community
(SADC).
This chapter commences with a discussion of historical developments in France, Germany and
Spain, all of which had an influence on the South African legal system. The discussion then turns to
historical developments in England and the Netherlands. It explores the roots of the South African
legal order and its Roman-Dutch, African and religious backgrounds, following which we discuss
the regional context.
4.2 The European contributions to legal development
The sixteenth century saw the rise of nation states that led to the formation of the states of
contemporary Europe. From this time onwards, states developed their own national laws, some
using the Roman law as basis. New schools of thought and philosophies also developed. Humanism
is an example of such a school of thought. It developed in France and influenced legal thinking in
various other jurisdictions from the sixteenth century onwards. In Germany, three legal schools
originated, namely the Usus Modernus Pandectarum, the Historical School and the Pandectists,
which later had an influence on legal thinking in South Africa. The Spanish legal moral theologians,
in turn, influenced Flemish and Roman-Dutch lawyers’ thinking on equity.1
PAUSE FOR REFLECTION
It would give a false impression to suggest that everyone in the area today known as Europe was in favour of the
reception of Roman law as the preferred system for law and order. As outlined below, not only was there real
resistance to the introduction of Roman law in England, but also in other areas of Europe. Influential groups resisted
the influence of Roman law as they felt that it would prejudice their vested interests. The French Appeal Court, for
example, applied only customary law in appeals from northern France. In 1278, the French King, Phillip III, placed a
prohibition on references to Roman law by members of his court and advocates. The French feared that if they
introduced Roman law, they might give the Germans a foothold as the Germans preferred Roman law as their legal
system. Roman law did not recognise the boundaries of states or regions and, as a result, these groups felt that its
recognition would have a negative effect on smaller states that wanted to protect their own customary law systems.
As mentioned above, the sixteenth century saw the establishment of nation states in Europe. Each state wanted its
own unique legal system that differed from those of its neighbours. As they do today, some people complained that
they had no knowledge of Roman law, that it was too complicated, that the law of procedure was too complex and
that legal proceedings took too long. There were also cost implications when a person appealed to a higher court.
Some jurists complained that jurists in the Middle Ages had conflicting opinions which caused legal uncertainty.2
4.2.1 France
During the sixteenth and seventeenth centuries a new approach to the study of law developed across
Europe. This approach, which became known as juridical humanism,3 advocated the study of the
original sources of Roman law. The University of Bourges in France became a well-known centre
for this approach to the study of law. However, not everyone accepted the idea of humanism and the
Humanists were opposed by those who continued to cling to the tradition of the Post-Glossators.
The approach of the Humanists was literally ‘to seek the sources’ or ‘to return to the old sources’
(petere fontes). They argued for a return to the study of the original sources and a break with the
habit of other jurists of studying the commentaries rather than the original text. The humanist
approach was also known as the mos gallicus. They had another saying, namely that ‘Greek was
read’ (Graeca leguntur). This was in contrast to their predecessors who maintained that Greek
should not be read, probably because few of them could read Greek in any event. The Humanists
regarded the traditional systematics of the Middle Ages as insufficient and tried to resystematise the
law according to Roman law categories as set out in the Institutiones of Justinian. Although there
were a number of famous Humanists, such as Alciatus of Italy, Zasius, Budaeus and Everardus,
Donellus and Cuiacius tend to have been cited most frequently as authorities by the South African
courts.
Skills exercise 4.1
Read the following passage from Opera House (Grand Parade) Restaurant (Pty) Ltd v Cape Town City Council 4 and
then answer the questions that follow.
In an actio in rem, when does the property becomes res litigiosa? The position under the earlier Roman law was
that a res became litigiosa at the stage of litis contestatio, which in our law arises upon the closing of pleadings, see
Executors of Meyer & Gericke Foord’s Reports 14. It appears however that at some later stage the res became
litigiosa either at the commencement of the proceedings or upon the service of summons, which nowadays is much
the same thing. Thus, according to Donellus De Jure Civiti book 9 chap 10 para 27, where the ownership of a thing
was in dispute it became litigiosa at the stage of summons. Any doubt on this point was seemingly clarified by the
distinction to be drawn between real and personal actions, and Perezius Praelectiones ad Codex 8.37 made that
distinction clear in stating that where a real action is involved, the res becomes litigiosa when the defendant is
informed of the summons issued against him, whereas, where a personal action is concerned, the res becomes
litigiosa at litis contestatio.
1. Consult a Latin-English dictionary to determine the meaning of the Latin terms, actio in rem, res litigiosa and litis
contestatio. Based on the meaning of these terms, can you hazard a guess as to what this case is about?
2. According to Donellus, when does property become res litigiosa?
3. How did Perezius refine the view of Donellus on this particular issue?
Critics of the Humanists’ approach maintained that it was too academic and contributed little to
legal development.5 The importance of the Humanists, however, is that they influenced practice by
publishing new editions of works on Roman law. They took the first step towards developing a legal
system that formed the foundation of many of the modern codifications of the law. The systematic
and streamlined approach of their works brought about better understanding of and gave insight into
the development of Roman law. Their research methods influenced later Dutch writers such as
Noodt and Hugo de Groot, and, as a result, sixteenth-century humanism forms the basis for legal-
historical research in South Africa today.
THINKING LIKE A LAWYER
What does it mean to do legal research? Is the working method of the School of Orléans or the Humanists more akin
to the norms of legal research today?
In the sixteenth century, France developed a French national law.6 French national law was based
mainly on customary law adapted in accordance with Roman legal principles. Pothier was one of
their most important writers. Even today, the works of Pothier form the basis of the South African
law of negotiable instruments, law of contract and law of partnership. These works were translated
into Dutch, which made them easier to use in the early South African courts. South African law is
therefore not only partially based on Roman-Dutch law and English law, but also on Roman
European law, sometimes referred to as the ius commune. French national law was codified in 1804.
The codification is known as the Code Civil.
Skills exercise 4.2
Read the following extract from the case of Mort NO v Henry Shields-Chiat7 and then answer the questions that follow.
At approximately 04:00 on 3 September 1995 at the intersection between Voortrekker Road and 10th Avenue,
Maitland, a collision occurred between a Mercedes Benz motor vehicle and a Honda motor cycle. The motor cycle
was driven by Archie Ellis who at the time was 19 years old. The accident was to change his life completely. The
doctor who examined Archie after the accident concluded his report thus:
The patient’s amenities were very severely impaired. From being a fit youngster who could participate in sport,
dance, date, swim, cycle and enjoy life he is now reduced to a severely physically impaired young man. His
facial appearance is cosmetically gruesome, his left upper-arm, his major arm, does not function adequately and
his left eye is blind. His loss of sense and taste culminates a catalogue of catastrophe. His life expectation is
normal and epilepsy and meningitis do not represent threats.
As a consequence of the accident, Archie’s father, Hermanus Ellis, entered into an agreement with respondent to
provide Archie with the necessary legal assistance for the prosecution of a claim for damages.
curator ad litem: a curator who takes charge of the legal aspects of a person’s affairs
Before the conclusion of these legal proceedings respondent caused an application to be brought for the
appointment of a curator ad litem to Archie and on 19 May 1998 Advocate Murray Bridgman was duly appointed in
that capacity. Shortly thereafter the claim was settled and on 26 May 1999 the settlement was made an order of
Court. In terms thereof the Multilateral Motor Vehicle Accident Fund was to pay to Hermanus Ellis the sum of R20
721 in respect of past medical expenses incurred on behalf of Archie and to pay to the curator ad litem the sum of
R1 120 000 in respect of loss of earnings and general damages incurred by Archie. It furnished the curator ad litem
with an undertaking in respect of the costs of future accommodation of Archie in a hospital or nursing home or the
costs of treatment of or rendering of a service or of supplying goods to Archie and in terms of such undertaking
would compensate Archie or his trustee as the case may be in respect of such costs after the costs have been
incurred and on proof thereof. The Fund was to pay for the costs of the curator ad litem as well as the plaintiff’s
taxed party and party costs of suit, including the costs of two counsel and the qualifying expenses of a range of
experts.
curator bonis: a curator who is in charge of the property of a person
The sum of R1 120 000 was paid into respondent’s trust account. On 14 October 1998 applicant was appointed as
curator bonis to Archie and subsequently letters of curatorship were issued. In effect the amount of R1 120 000
represented a capital sum from which Archie was to derive income to sustain him for the rest of his dramatically
changed life. Given the extent of his injuries it is highly unlikely that Archie will be able to supplement this income to
any significant and meaningful extent by means of remuneration from employment. The money received from the
Fund will never be able to restore Archie to the life which he may well have enjoyed had this tragic accident not
occurred. But without such an award his future would clearly be all the more difficult.
This sad background serves to throw into sharp relief the extraordinary nature of the dispute which this Court is now
required to resolve. Upon receipt of the award from the Fund respondent sent applicant a cheque for R760 081,99,
having deducted from the amount of R1 120 000, various disbursements and a professional attorney/client fee of
R225 000 together with VAT on the fee which attracted tax at 14%. On receipt of the cheque applicant wrote to
respondent in which he took the view that it was not possible for respondent to deduct fees from the amount
received from the Fund. As he said in his letter
the situation is that your fees must first be taxed and will then be settled by the writer as the curator bonis upon
presentation of the taxed bill. We have discussed this with the Master of the High Court and he confirms this
view. You have our assurance that we shall co-operate and deal with the settlement of your account on an
urgent and expedited basis. Please therefore let us have the sum in the amount of R256 500 as soon as
possible.
Upon receipt of this letter the parties engaged in a vigorous dispute as to whether respondent was entitled, pursuant
to the mandate entered into with Hermanus Ellis, to deduct fees which had become payable on presentation of a bill
subject to the right of Archie Ellis (or his representative) to demand taxation thereof. That respondent was entitled to
a proper fee was not disputed. What divided the parties was whether respondent could take fees directly from the
amount which had been paid by the Fund or was required to pay over the entire amount to the curator bonis and
thereafter claim fees pursuant to a taxed bill. No bridge could be constructed to span this divide between applicant
and respondent. While jurisprudential war was waged with unfettered ferocity Archie’s capital diminished. The
tragedy which engulfed Archie in September 1995 had clearly not been sufficient to remind either one or both of the
warring parties of their duty to act in a manner which would maximise Archie’s financial ability to negotiate a perilous
future existence.
[…]
mandatum: a commission or mandate
It is trite law that the relationship of attorney to a client is based on a mandatum, with some features which are
peculiar to this particular type of agency. See Goodricke and Son v Auto Protection Insurance Co Ltd (in Liquidation)
1968 (1) SA 717 (A) at 722H. An attorney’s authority comes to an end in a number of ways including death, change
of status of the client and revocation. In cases where this principle has been examined, the issue of whether a
change of status which is sufficient to terminate the mandate includes the attainment of majority has not been
canvassed. See Goodricke’s case (supra) and Klein NO v South African Transport Services and Others 1992 (3) SA
509 (W) at 513D–G, in which the effect of insolvency upon the continued existence of a mandate was examined. No
mention was made as to whether a change of status which would automatically terminate a mandate includes the
attainment of majority.
Mr Louw submitted that there is no reason why the change of status of a principal does not include the attainment of
majority for the purpose of terminating a mandate between attorney and client. To this end he referred to Pothier’s
Treatise On The Contract of Mandate (translated by B G Rogers (1978)) at para 112:
When a person, possessing the capacity and authority to handle another man’s business, gives a mandate to
somebody to carry out some portion of the said business on his behalf, then the mandate established between
these persons is terminated and nullified if the authority possessed by the mandant to handle the business he
has entrusted to his mandatory happens to cease. For example, if a guardian gives a mandate to someone to
receive that which is due to the minor in his charge; or suppose that he nominates somebody to act for him in a
law suit with which he is proceeding on behalf of the minor in his charge; then in both cases, if the guardianship
subsequently ceases, for example, on the minor reaching his legal majority, the mandate or act of procuration,
made by the guardian, is terminated: for the guardian’s mandatory draws his mandatory’s authority from the
guardian, who is his mandant, and it follows that this mandatory’s authority will only remain in force for as long
as the guardian’s authority exists; the guardian’s mandatary is in no position to carry out business, […] which his
mandant cannot validly carry out himself.
1. What is the central issue in dispute between the parties in this case?
2. One of the sub-issues that arose was whether the respondent had a valid mandate to deduct his fees from the amount
received from the Multilateral Motor Vehicle Accident Fund. Summarise Pothier’s view on the duration of a valid
mandate.
3. Do you think the respondent in this case acted ethically? Debate the issue between those who believe he did and
those who believe he did not in class.
Skills exercise 4.3
Use the methods explained in chapter 12 to find and read the following article: Thomas, P.J. 1990. Die Rennaissance en
die reg. De Jure, 23(1):57–66. Summarise the article and comment on whether the view of the author toward the
Humanists concurs with the assessment of the work of the Humanists put forward in this chapter.
4.2.2 Germany
The boundaries of Germany as they are known today were more or less fixed by the Treaty of
Verdun of 843.8 This Treaty essentially divided Charles the Great’s empire into three parts with
Germany consisting of numerous small states in which Roman law was increasingly applied. Why
did the German tribes use Roman law to establish law and order when they already had their own
customary law systems? One of the reasons for the reception of Roman law was the lack of a central
government. When some of the smaller German states united to form the Germany that we know
today (more or less), they needed a new legal system. Each state had its own unwritten customary
law system and there was no proper court system to enforce customary law. They realised that a
unified and single legal system was necessary to ensure law and order. Moreover, as trade increased
between the different tribes, they needed a common legal system which the Roman law could
supply unlike the customary legal systems.
Students from Germany studied in Italy and Orléans and brought their knowledge of Roman law
to Germany. Gradually, universities where Roman law was taught were established in Germany. The
result was that Roman law found its way into the legal system of the different smaller states. The
Reichskammergericht (Imperial Chamber Court) was instituted in 1495 and developed the practice
of referring to Roman law in its decisions. In legal notarial practice, contracts and wills were drafted
according to Roman law. Canon law also had a direct influence as the church tried to change both
the Roman law and the customary law systems. Germany was also influenced by humanism as
discussed in the French context above.
Usus: Application
Modernus: Modern
Pandectarum: of the Pandecta or Digesta
Usus Modernus Pandectarum: Modern Application of the Digesta
As noted above, the three schools in Germany that influenced legal development were the Usus
Modernus Pandectarum, the Historical School and the Pandectists. In the seventeenth and
eighteenth centuries, there was a group of lawyers who advocated the development of German
national law. The method that they used to study law was known as the Usus Modernus
Pandectarum. The exceptional characteristic of this School was that it ensured the practical
reception of Roman law. The Usus Modernus Pandectarum writers recognised the existence of both
Roman and customary law, and tried to eliminate or reconcile the differences between the two legal
systems. They also tried to apply both customary law and Roman law in the legal practice of that
time. The most important writers of this School are Stryk and Leyser.9
romanticism: an artistic, literary and intellectual movement that placed emotion and intuition above rationalism in
reaction to the Industrial Revolution and the scientific study of nature
historicism: a philosophical theory that emphasises the importance of a specific context, such as a historical period, in
contrast to individualist theories such as rationalism
In the eighteenth and nineteenth centuries, there was a renewed interest in romanticism and
historicism. This influenced the law and also resulted in the establishment of the Historical School.
The Historical School was a continuation of the Usus Modernus Pandectarum and natural law
although the members of the School denied this. The School was against the codification movement
– that is, the notion that the German law should be written in a code. The School studied classical
Roman law only. Von Savigny, one of the most important members of the School, was of the
opinion that codification would mean the death of the law as the law would stagnate and no further
development would take place. According to this School, legal rules developed from the Volksgeist,
in other words from and within the community or people, and formed part of the history of the
community.
South African courts still frequently refer to Von Savigny.10 Other members of this School were
Hugo and Puchta. The School had a major following in South Africa in spite of the fact that it
became important only in the eighteenth and nineteenth centuries, while Roman-Dutch law had
already been transferred to the Cape during the seventeenth century.
The Historical School was followed in the nineteenth century by the Pandectists.11 The name of
this School was derived from the titles given to books written by the School’s members. During this
period, although jurists studied Roman law in its historical context, they developed abstract
terminology, rules and definitions to systematise the law. They regarded the law as a closed system
– administering justice required the logical application of abstract rules and terminology to a
concrete situation. The approach of the Pandectists therefore prefigured the development of
positivism. The Pandectists should not be used as an authority for South African law because they
did not write on the law of their time, but on systematised Roman law. They can therefore be used
as authority for classical Roman law, but even then they are not regarded as the best authority. They
had a significant influence in the Netherlands and an even greater influence in Germany.
The last major historical event during this time was the codification of German private law in
1896. The codification is known as the Bürgerliches Gesetzbuch, which is still used in Germany
today.12
Skills exercise 4.4
The developments in Germany beg the question whether or not a legal practitioner may criticise a law or a legal rule,
generally. Read paragraphs 1–19 of the Constitutional Court’s decision in Union of Refugee Women v Director: Private
Security Industry Regulatory Authority13 and then answer the questions that follow.
[1] This application concerns the rights of refugees to work in the private security industry in South Africa. This
industry is regulated by the Private Security Industry Regulation Act 56 of 2001 (‘Security Act’). The matter reaches
this Court in the form of an application for leave to appeal against the judgment of Bosielo J in the Pretoria High
Court.
[2] The first applicant is the Union of Refugee Women, a voluntary association acting in the interests of its members
and in the interests of the class of people to whom the applicants belong. The second to thirteenth applicants are
refugees as defined in the Refugees Act 130 of 1998 (‘Refugees Act’).
[3] The first respondent is the Director of the Private Security Industry Regulatory Authority (‘Authority’) established
in terms of s 2(1) of the Security Act. The second respondent is the Chairperson of the Private Security Industry
Appeal Committee (‘Appeal Committee’) provided for in s 30 of the Security Act. The third respondent is the
Chairperson of the Council for the Private Security Industry Regulatory Authority (‘Council’). The Council was
established in terms of s 5 of the Security Act. In terms of this section the Authority is governed and controlled by the
Council. The fourth respondent is the Minister of Safety and Security (‘Minister’). In terms of s 11 of the Security Act,
the Minister exercises overall supervision of the first respondent.
The legislative framework
[4] Section 20 of the Security Act says that no person may render a security service for reward unless he/she is
registered as a security service provider in terms of the Act. Section 23(1) of the Security Act provides as follows:
Any natural person applying for registration in terms of s 21(1), may be registered as a security service provider if the
applicant is a fit and proper person to render a security service, and–
(a) is a citizen of or has permanent resident status in South Africa;
(b) is at least 18 years of age;
(c) has complied with the relevant training requirements prescribed for registration as a security service
provider;
(d) was not found guilty of an offence specified in the Schedule within a period of 10 years immediately before
the submission of the application to the Authority;
(e) was not found guilty of improper conduct in terms of this Act within a period of five years immediately before
the submission of the application to the Authority;
(f) submits a prescribed clearance certificate, together with such other information as the Authority may
reasonably require, if the applicant is a former member of any official military, security, police or intelligence
force or service in South Africa or elsewhere;
(g) is mentally sound;
(h) is not currently employed in the Public Service in circumstances where such registration may conflict with a
legislative provision applicable to the applicant;
(i) has paid the relevant application fee; and
(j) is not a person referred to in ss (5).
[…]
[5] In terms of s 23(2) of the Security Act:
A security business applying for registration as a security service provider in terms of s 21(1), may be so registered
only if–
(a) every natural person referred to in s 20(2) complies with the requirements of ss (1) and is not an
unrehabilitated insolvent; and
(b) such security business meets the prescribed requirements in respect of the infrastructure and capacity
necessary to render a security service.
[6] Section 23(6) of the Security Act, however, provides:
Despite the provisions of ss (1) and (2), the Authority may on good cause shown and on grounds which are not in
conflict with the purpose of this Act and the objects of the Authority, register any applicant as a security service
provider.
Relevant facts
[7] All the applicants except the first applicant applied to the Authority, in terms of s 21 of the Security Act, to be
registered as security service providers.
Second to sixth applicants
[8] The second to sixth applicants were initially registered by the Authority as security service providers. On 20
December 2002, however, they all received notice of intention to withdraw their registration in terms of s 26(4)(c) of
the Security Act on the basis that they were granted registration in error inasmuch as they are neither citizens nor
permanent residents of South Africa.
[9] The notice also contained an invitation to them to provide the Authority with all relevant information as to why,
despite the requirements of s 23(1)(a) not having been met, the Authority should not withdraw their registration. The
written representations had to be made within 21 days.
[10] The second and fifth applicants’ attorneys sent written submissions to the Authority, in essence stating that a
person who is neither a citizen nor a permanent resident of South Africa may be registered as a security service
provider under the Security Act in the light of the wording of s 23(6) of the Security Act.
[11] In March 2003 the Authority replied to the second and fifth applicants and advised that their written
representations had been unsuccessful. At the same time the Authority formally withdrew the registration of the
second to sixth applicants as security service providers.
[12] In June/July 2003 the second to fourth applicants appealed to the Appeal Committee against the decisions of
the Authority on the grounds that the Authority, in finding s 23(1) to be the sole reason not to maintain registration,
committed an error of law and its decisions amount to irrational and unlawful administrative action. It was also
contended that the decisions take no account of the provisions of s 23(6) of the Security Act or the Constitution of
the Republic of South Africa, 1996, and in so doing unfairly and unjustifiably violate the applicants’ rights to equality,
non-discrimination and dignity. Further that the decisions are inconsistent with the Constitution and accordingly
invalid. The point was also taken that the requirements for registration set by s 23(1)(a) when read together with s
23(6) allow the Authority to maintain the registration of these applicants as security service providers despite their
being neither citizens nor permanent residents. The fifth and sixth applicants did not appeal.
[13] On 20 September 2003 the second to fourth applicants were advised that their appeals had been dismissed.
The reasons given by the Appeal Committee were that it was common cause that the Authority had made an error in
registering these applicants. They also found that these applicants, notwithstanding the fact that they had been given
an opportunity to do so, had failed to show good cause, and on grounds which are not in conflict with the purpose of
the Security Act and the objects of the Authority, why they should be registered. They therefore had failed to justify
the application of s 23(6).
Seventh to thirteenth applicants
[14] The seventh to thirteenth applicants all applied to be registered as security service providers. The Authority
advised that they had been rejected on the basis that they were neither citizens nor permanent residents of South
Africa.
[15] The applications of the twelfth and thirteenth applicants were each supported by an affidavit which can be
summarised as follows: the applicants are recognised refugees in terms of s 24 of the Refugees Act. They are aware
of the requirements of s 23(1)(a) and 23(6) of the Security Act, and reg 2(2)(b), 2(2)(c) and 2(6) made under the
Security Act. They are unable to provide police or official criminal record clearance certificates from the Democratic
Republic of Congo and Burundi embassies in South Africa, respectively, as the officials at those embassies would
not be able to render unbiased information. The officials are not trustworthy. Neither of the applicants had been
found guilty of any offence specified in the Schedule nor had they been found guilty of improper conduct, nor had
they been members of any national military, security, police or intelligence force or service, nor had they been
employees of any of the national security services.
[16] The seventh to eleventh applicants lodged appeals to the Appeal Committee on grounds similar to those
advanced by the second to fourth applicants. These appeals were dismissed for reasons similar to those furnished to
the second to fourth applicants. The twelfth and thirteenth applicants did not appeal the decision of the Authority.
Decision of the High Court
[17] The applicants approached the High Court and sought to review and set aside the decisions of the Authority and
the Appeal Committee. In the alternative they sought an order declaring s 23(1)(a) of the Security Act to be
inconsistent with the Constitution and invalid. Their application was dismissed with costs.
[18] The High Court held that s 23(1)(a) does indeed grant South African citizens and permanent residents
preferential treatment, but it emphasised that this section cannot be read in isolation. It thus reached the conclusion
that s 23(1)(a) was sufficiently tempered by s 23(6) to render it constitutionally compliant. Reflecting on the rationale
for s 23(1)(a), the High Court held that:
It is understandable, in my view, that due to the high level of trust required by […] private security officers, there must
be some strict criteria as to who can qualify for such positions so as to exclude undesirable persons.
[19] Although it expressed sympathy for the plight of refugees, particularly given their vulnerable position in society,
the High Court was of the view that the safety and security of the public, and the need for effective control of the
private security industry, justified the limitations on the rights of refugees imposed by s 23(1)(a), particularly as they
were free to seek gainful employment elsewhere.
1. What legal rule is the object of criticism in this application? On what is this criticism based?
2. In this application the legal rule is not the only object of criticism. What other strategy do the members of the Union of
Refugee Women employ in their attempt to secure registration as security service providers?
3. Apart from the rights in the Bill of Rights and other provisions of the Constitution, are there any other bases on which
South African legal practitioners can criticise a legal rule?
4.2.3 Spain
The Spanish moral theologians or philosophers were active in Spain during the sixteenth century.
They were natural lawyers who also studied Roman law. Their standpoint on, among others, the
inhumane treatment of indigenous communities by the South American Spanish colonisers was
based on the principles of equity and justice. Writers such as Vitoria, Soto and Molina exerted a
major influence on one of the most well-known Roman-Dutch lawyers, namely Hugo de Groot. De
Groot was further influenced by Lessius, a Flemish Jesuit, who studied under these philosophers. As
a result, equity and justice feature prominently in De Groot’s works. The Spanish moral theologians
influenced the development of two actions in South African law, namely the action for the negligent
causation of pain and suffering and the action of the dependant for the negligent causation of the
death of the breadwinner.
4.2.4 England
England never experienced a fully fledged reception of Roman law. It has a long and complicated
legal history that is difficult to summarise in a few paragraphs.14 Its common law system was
stronger than the fragmented customary law systems that the Romans encountered when they
conquered the rest of Europe. The result was that Roman law was used in England only if the
common law offered no solution.
Anglo-Saxon law15 provided the basis for contemporary English common law. Like South
African common law and African customary law, English common law was unwritten. In the early
years, the kings issued legislation which amended or supplemented the common law. The kingdoms
were divided into shires or counties. There was also a tithing system where every free man was
enrolled in a group of 10 who were permanent sureties for each other’s good behaviour. During the
period from approximately 550 to 1066, the courts did not make a distinction between private and
criminal law. The court determined whether there had been a breach of the peace or not and applied
truth tests of water and a hot iron.16
The Normans conquered England in 1066, after which a form of feudal law was applied. In this
system, the king owned all the land. He gave land to his followers who, in turn, gathered
communities around them by providing the common people with land. A distinction was made
between the king’s court and the witan. The witan was a council summoned by the king. The king’s
court applied feudal law, while the witan applied customary law. The burden of proof (truth tests)
developed into a ‘trial by battle’. In other words, the two opposing parties had to fight a battle and
the winner was regarded as the one who spoke the truth. This was probably only used in the case of
the nobility while the tests of water and hot iron were still applied to commoners.
The king sent out commissioners to oversee certain courts and they sometimes had to decide
cases dealing with tenure disputes. These courts were similar to what we would today call a circuit
court. The use of writs became common practice at this time. A writ is a written document that
could be used to give instructions, to make grants, to publicise oral transactions and to order a
sheriff to discover something through enquiry from the men of the shire. These writs assisted in
proving a person’s claim or indicating that a person was acting under the authority of the king.
vernacular laws: laws using the ordinary language of the common people as opposed to Latin
During the time of King Henry I,17 the Exchequer was established to keep all the financial
records of the king. The Court of the Exchequer could hear cases with regard to tax matters. Various
older customary and vernacular laws were compiled in the Leges Henrici I (the Laws of Henry I).
During the reign of Henry II,18 a Treatise on the Laws and Customs of the Realm of England,
commonly called Glanvill, was written to describe the remedies of the royal court and criminal
proceedings were adjusted. In addition, the Court of Assizes (a court of travelling judges) and a jury
system were introduced which were abolished only in 1933. All matters not relating to tax were
dealt with in the Court of Common Pleas where royal writs determined its jurisdiction and
procedures.
In 1215, the Magna Carta was enacted. This document described the rights of the nobility and the
common people in reaction to abuses perpetrated by King John.19 The Magna Carta determined that
the Court of Common Pleas should be in Westminster. The King’s Bench acted as the court of
appeal from all the other courts. The king attended the hearings if possible. However, the king could
also hear cases and therefore a court was needed that could hear appeals from the King’s Bench.
The High Court of Parliament, and later a specialised court in 1585, acted as such a body.
After the Magna Carta, the Lord Chancellor could issue writs only if the king authorised them.
This led to the stagnation of the development of the common law which, since the thirteenth
century, could be developed only by way of legislation. If a person felt that the law was unjust, he
could petition the king. The king could then adapt the common law on the basis of equity after
consultation with his council. When these petitions became too many for the council to deal with,
the Lord Chancellor received a mandate to deal with them. He then had a double task – to issue
writs as well as to adapt the law on the basis of equity when he received petitions. In the Middle
Ages, the Lord Chancellor was sometimes a religious personage who had training in canon law that
was based on Roman law. Although canon law and Roman law were not referred to as such, the
Lord Chancellor used the principles of equity derived from Roman law and natural law. Reference
was made to the Court of Chancery or the ‘Court of Conscience’. This court could apply rules that
were not available in the common law. The judges from the other courts felt threatened by this
court, which provided an easier route to justice and was therefore more popular. This gave rise to
conflict in the seventeenth century, which led to the continued recognition of the Court of Chancery.
The Majlessie Law Firm summarises the legal developments in England from the seventeenth
century as follows:
By the seventeenth century, the reformation had taken hold in Europe and the Church of England took the position in
politics that the Catholic Church had held. This made its mark in several ways legally – as clerical power began to fade,
the power of the monarch was made more absolute. This culminated in the regicide of King Charles I and a brief
Commonwealth. As the seventeenth century came to a close, England was more secular and officially a constitutional
monarchy with limited powers for the King.
In the nineteenth century, English law was extensively reformed and made uniform. Contradictory laws that had arisen
from regional traditions began to be made consistent. County courts and public prosecution made enforcement of the
law equally more uniform. Privileges for clergy began to be phased out as well. By the end of this period the treatment of
women under the law began to become closer to that of men as well. While the slave trade had been abolished in the
nineteenth century, it did not change the status of existing slaves. Legal changes in twentieth century England dealt
extensively with equal treatment under the law. Many nations already using a system modelled after English common
law made similar reforms. Late in the twentieth century laws regarding the role of England within the European Union
began to appear.20
The rule of precedent, or stare decisis, where a court is bound by its own previous decisions or the
decision of a higher court, developed over time in England. Today, it remains a significant feature of
the South African legal system.21 By the time the British arrived in the Cape Colony, it was already
established practice to apply the rule of precedent in the courts. Two other courts were also
established, namely the Privy Council, which heard, among others, appeals from colonies such as
the Cape Colony, and the Court of Admiralty, which dealt with marine disputes.
Skills exercise 4.5
The doctrine of stare decisis encapsulates the idea that courts should be bound by previous decisions to ensure legal
certainty. The rules of precedent which you will study in chapters 5 and 8 give effect to this doctrine. Even the doctrine of
stare decisis, however, is not immune to criticism. Read the following extract from the Zimbabwean case of S v Ndhlovu
22 and answer the questions that follow. The issue in this particular case was whether the respondents could be
convicted of the crime of ‘housebreaking with intent to steal’ when they had only been charged with the offence of
‘housebreaking with the intent to commit an offence to the prosecutor unknown’ (a less serious offence). In other words,
this is a procedural question whether the charge should first be amended before the accused could be convicted.
Mr Jordaan, who has appeared for the respondents in this matter, while he naturally agrees that an accused could
not be convicted of housebreaking with intent to steal in this case without first amending the charge, strenuously
argues that the amendment should not be allowed. He argues, on the authority of S v Collett 1978 (4) SA 324 (R)
that, as I have said in my appreciation of s 191, the court has no right, once an accused person has been arraigned,
to change the charge on which he has been arraigned entirely and substitute a more serious charge for the less
serious one on which the accused was originally charged. In Collett’s case the accused was originally charged with
common assault and it was held that, once the accused had been arraigned on that charge of common assault, an
amendment would not be allowed altering the charge to one of assault with intent to do grievous bodily harm as that
was substituting an entirely new and more serious offence for the one originally charged and for the one to which
the accused had pleaded. In other words, to use an example, it would not be proper, if an accused was arraigned
and pleaded to a charge of culpable homicide, subsequently to amend the charge to one of murder, no matter what
the evidence disclosed. That is not the sort of amendment which is permitted by s 191(1) of the Code.
It would be easy to dismiss Mr Jordaan’s argument by simply referring to the long line of authorities which have
permitted amendments of this sort, because Mr Jordaan has quite rightly conceded that, if we are going to uphold his
argument, we must rule that all this long line of cases have been wrongly decided. So he boldly argues that they
must all be overruled. It would be easy to dismiss Mr Jordaan’s argument by simply taking refuge in the doctrine of
stare decisis, and argue that, in view of this vast body of judicial opinion which is against him, it would not be right
now to upset this long line of decisions. This, however, is not a view to which I am inclined to subscribe. The doctrine
of stare decisis is such an easy haven in which to take refuge that it often stultifies any attempt to reconsider an old
established principle which may be wrong. Every lawyer recognises that the law must be certain and that in
borderline cases it is better for the law to be certain and wrong than uncertain and right, but this is only in borderline
cases. One has only to study many of the judgments of that disciple of original thought, the Master of the Rolls, Lord
Denning, to recognise that the doctrine of stare decisis may often be used by Judges as an easy way out and that an
erroneous decision after being repeatedly followed becomes regarded as almost sacrosanct. I would prefer in this
case to adopt Lord Denning’s approach and, as there is no decision of a Superior Court binding on me in this matter,
I would prefer to consider Mr Jordaan’s argument on its merits, and if, in the circumstances, I was persuaded that his
argument was right, I would think this Court should have no hesitation but to adopt it, notwithstanding the vast body
of opinion against his argument. I say this because Mr Friedman for the State has not been able to refer us to any
case in which Mr Jordaan’s argument was previously advanced and rejected, and it may well be that this argument
has in the past escaped attention. So far as we are concerned, therefore, it may be regarded as an argument res
nova.
res nova: a new case
1. To what danger in the application of the doctrine of stare decisis does the judge point in this extract?
2. What do you think of the statement: ‘Every lawyer recognizes that the law must be certain and that in borderline cases
it is better for the law to be certain and wrong than uncertain and right’?
Legal developments in England cannot be divorced from developments in Scotland. Between the
thirteenth and eighteenth centuries, the reception of Roman law took place in Scottish customary
law. Because of the antagonistic relationship between the two states, the Scots were vehemently
opposed to everything English and Scots students therefore preferred to study in Europe,
particularly in France and the Netherlands. Canon law, too, was studied at Scots universities. Roman
law was mainly applied as a subsidiary system, but was also used as a primary legal system where
Scots customary law offered no solution.
After the English conquest in 1707, the influence of English law became stronger, but the Scots
kept their own legal system. The result was that the Scots legal system consists of a mixture of
Roman law and English law. The Scots and South African legal systems are mixed legal systems as
both have characteristics of Roman-Germanic law and English law.23 Today, Scots and South
African scholars and lawyers usefully compare these two legal systems when they want to find
solutions to problems in their own legal systems.
4.2.5 The Netherlands
Simon van Leeuwen used the term ‘Roman-Dutch law’ for the first time in the seventeenth century.
Roman-Dutch law flourished during this century, which was also the time when the law was
transferred to the Cape of Good Hope.
The reception of Roman law differed in the different parts of the Netherlands – some parts were
under German influence, while other parts applied the law as it was in northern France.24 The
Netherlands at this point, like Germany, did not have a national legal system. The courts applied
Roman law when the customary law did not offer a solution. Notably, Friesland, one of the Dutch
provinces, experienced a more comprehensive reception of Roman-Dutch law, while canon law was
also a major influence.
Students from the Netherlands studied Roman law and applied their knowledge to the
administration of the state, the courts and the church. The University of Leuven, presently in
Belgium, was established and hosted lecturers from Germany, France and Italy. The result was that
the Humanists found a welcome haven in the Netherlands. As already indicated, Spanish moral
theologians influenced customary law by way of Lessius and De Groot. De Groot declared that
Roman law should be applied on the basis of equity and not as subsidiary law.
Skills exercise 4.6
Using scholarly books and articles, write a 1 500 to 2 000 word essay in which you describe the life and work of Hugo de
Groot. Also assess his contribution to the development of Roman-Dutch law.
The reception of Roman law was halted by the codification of the law of the Netherlands in the
Burgerlijk Wetboek of 1838. However, Roman law was also included in the codification. Roman-
Dutch law, as it was applied in 1652, was transferred to the Cape of Good Hope and formed (with
amendments) the major component of South African private law.25 Today, nearly all the writers on
Roman-Dutch law are still authorities for South African law.
The sources of the law of the Netherlands included stadregte and landregte. Stadregte was a
system of legal and administrative rules developed from the privileges granted by the kings to the
liege lords. Landregte were rules issued for a certain region or area. The different forms of
legislation that were found in the Netherlands were placaeten (Dutch legislation), ordinances and
resolutions.
The most important legal rules from 1075 to 1795 were compiled in the Groot Placaetboek.
Various compilations were also made of court decisions in the Netherlands, of which the decisions
of the Hof van Holland en Zeeland are the most important for South African law. These
compilations were mostly private compilations donated to universities with the express command
that they should never be published because judges and other practitioners wrote their private
opinions in these decisions, the dissemination of which could have led to embarrassing situations.
As was the case in the pre-classical time, the jurists in the Netherlands also wrote legal opinions on
certain legal questions and they acquired great authority. They were later published and one can find
references to these in various court decisions and legal books. Other systematic books on the law
were especially important. For example, before Hugo de Groot’s Inleydinge tot de Hollandsche
Regtsgeleerdheid (Introduction to Dutch Law) was published, the works of the Commentators were
used.
The most important jurist of the fourteenth and fifteenth centuries was Philip of Leiden, who
lectured at the University of Leiden. Later jurists include Wielandt, Damhouder and Everardus.
Specifically, Damhouder had a major influence in Europe and his work was translated into German,
French and Dutch. His work on criminal justice was also held in high regard in the Cape.26 Other
authors were Hugo de Groot,27 Paulus and Johannes Voet, Vinnius,28 Matthaeus II,29
Groenewegen,30 Van Leeuwen,31 Huber, Noodt32 and Van Bijnkershoek who are still referred to in
South African courts today.
Apart from Hugo de Groot, with whom you have already become acquainted, Johannes Voet is
one of the most frequently quoted Roman-Dutch lawyers. He was born in 1647 in Utrecht and
became professor at the University of Leiden in 1680. His best-known work is the Commentarius ad
Pandectas, a commentary on the Digesta of Justinian, which includes a discussion of the Roman-
Dutch law of that time. This book was translated from Latin in 1892 by Judge Percival Gane. Voet
was frequently referred to in the courts of the Cape and is still used by South African courts as one
of the main sources of Roman-Dutch law.
Skills exercise 4.7
Read the following passage from Gane’s translation of Voet’s Commentarius ad Pandectas (Book V Title 1)33 and then
answer the questions that follow.
None judge in his own cause – As a matter of rule no one was allowed to give judgment in his own cause. What
could be done by a magistrate on the public behalf was not to be allowed to individuals, lest opportunity for undue
disorder should arise thereby. Nor ought the praetor to suffer those whom he is able to appease by his own
lawgiving to go to the length of brawling and fighting.
‘To this end’ says Quintilian, ‘did we get magistrates and laws from our ancestors, that every man should not be the
avenger of his own distress, and that criminal cases should not incessantly defeat their own purposes through
punishment taking on the shape of the crime. Have you suffered damage? There is the law, the court and the judge
– unless you are ashamed to have the protection of the law.’ Nor does Cassiodorus put it very differently. ‘The
hallowed reverence for the laws’ quoth he ‘was devised for this reason, that nothing should be done by violence,
nothing on one’s own initiative. If lawsuits are put an end to by force what will be the difference between quiet peace
and public disorder?’
This was of course the reason why the written answer was given that the strength of judicial proceedings and the
guardianship of the law of the state was publicly established so that no one should take punishment into his own
hands. It seemed better for a matter to be decided by those who had no interest in it rather than that individuals, who
are often too self-seeking, should judge of their own affairs and of their own rights and wrongs. For this reason too it
was expressly forbidden by an ordinance of Charles V that nobles or citizens or cities or guilds should under some
colour of privilege enjoyed by them declare their own rights by course of action rather than by proceeding at law with
their opponents.
1. Is there anything about Voet’s manner of expression that makes it difficult to understand?
2. What important ideas is Voet linking in this passage? How do these ideas relate to the concept of the rule of law
introduced in chapter 2?
Cornelis van Bijnkershoek, another important Dutch jurist, initially studied theology. In 1704, Van
Bijnkershoek became a member of the Hooge Raad van Holland, Zeeland en Wes-Friesland (High
Council of Holland, Zeeland and West-Friesland) and was known as one of the best judges of his
time. With his good knowledge of Roman law and contemporary Roman-Dutch law, he set the tone
in the courts. He made notes and commentaries on each day’s cases that appeared before him. These
notes contained personal commentary on the advocates and his colleagues. He left these notes to his
son with the instruction that his son should give them to his own son. Van Bijnkershoek ordered that
his commentaries should never be published, especially as they contained his personal observations.
His work was nevertheless published in the twentieth century possibly because by that time, it was
felt that no one would be offended by his side remarks.
The eighteenth century in the Netherlands was known as the pre-codification period. This period
played an important role in South African legal history, although strictly speaking the law of this
time should not have had an influence at the Cape since Roman-Dutch law as it was in 1652 was to
be applied. During this time, Van der Linden and Van der Keessel played an important role. Van der
Linden’s Koopmans Handboek (Merchant’s Textbook) was declared the official ‘law book’ of the
South African Republic (Zuid-Afrikaanse Republiek) in 1858.34 Van der Linden was the last well-
known Roman-Dutch writer of the pre-codification period. He was a student of Van der Keessel at
the University of Leiden. His works were of a practical nature and his Koopmans Handboek was
published in 1806 in Amsterdam. Both Van der Linden and Van der Keessel are often referred to by
South African courts.
Skills exercise 4.8
With reference to chapter 12, use the Jutastat or LexisNexis databases and find at least three South African court cases
where reference is made to the work of Van der Linden, Van der Keessel or both.
1. In each case, consider how the court is using the reference to Van der Linden or Van der Keessel. For example, is the
court using it as authority for a particular legal rule?
2. Is the historical authority used in combination with other sources of law or does it serve as the primary authority on
which the court bases its case?
3. Read section 39 of the Constitution. Do you think that a South African court may develop the law as it is set out by
authorities such as Van der Linden and Van der Keessel?
Skills exercise 4.9
With reference to chapter 12, find the following article in your law library: Scott, J. 1993. The future of our Roman-Dutch
law: Reflections and a suggestion. De Jure, 26(2):394–400. Summarise the main themes in the article. At the end of this
article the author identifies three possible responses to the question: ‘What bodes the future for our Roman-Dutch
common law?’ With which of the three positions would you align yourself?
4.3 Historical legal developments in South Africa
In this section, we consider the historical development of South African law in terms of the common
law, in other words law adopted from Europe, African customary law and the law of various
religious systems. The development of South African common law can be divided into different
phases. While the history of African customary law starts much earlier, the first phase in the history
of South African common law, in other words law adopted from Europe, stretched from Jan van
Riebeeck’s arrival in the Cape of Good Hope to the first British occupation in 1795. In the period
between 1795 and 1803, minor amendments were made to existing law. The Batavian Republic
ruled from 1803 to 1806, and during this time, attempts were made to change amendments made by
the English rulers. From the time of the second British occupation in 1806, a new era in the
administration of justice began. This phase stretches to 1828 when the English court system and law
of procedure were introduced. The next phase stretches from 1828 to 1910 when South Africa
became a Union. During this time, the English influence was stronger in the Cape Colony and Natal
than in the other parts of South Africa. During the next phase, from 1910 to 1991, the segregation
policy, called apartheid after 1948,35 had a profound influence on the law and justice system. A new
era began in 1991 when major reforms changed the racially based legal system. In 1994, South
Africa adopted its first democratic interim Constitution and the final Constitution was accepted in
1996.
4.3.1 Common law
4.3.1.1 The period 1652–1795
The effect of the arrival of Europeans in Africa, particularly in southern Africa, had significant
implications for the continent.36 Jan van Riebeeck’s primary task was to establish a half-way
refreshment station for the ships of the VOC (Vereenigde Oost-Indische Compagnie or United East
India Company) at the Cape of Good Hope. In 1657, nine VOC members, called kompanjieleden or
company members, were allowed to obtain farms. This opened the door for European settlement at
the Cape. In 1689, 180 French Huguenots arrived. By 1795, there were approximately 15 000 free
citizens (non-company and non-indigenous members) living at the Cape.
The original inhabitants of the Cape, the Khoikhoi or Khoi, were initially left to their own
devices. Although some people tried to enslave the Khoi and to steal their animals, these actions
were later forbidden. Trade was based mainly on barter. The Khoi were embittered as their animals
and land were being taken away from them and by 1657, there was open conflict between the
parties. From 1673 to 1677, military units were used against the Khoi forcing their leaders to
conclude various agreements with different Cape governments. In 1671, the government claimed
jurisdiction over individual members of the Khoi, especially in matters between free citizens and the
Khoi. If the Khoi approached the courts in the Cape, they were regarded as having given up the
jurisdiction of their own leaders. In some cases, the question was raised whether certain conduct
would be considered punishable under Khoi law. Free citizens never received the death penalty if
they were found guilty of murdering a Khoi, even though trials were held. Because of the loss of
their livestock and land, the Khoi became part of the workers’ class in the Cape.
The community was gradually organised on a racial basis because the Europeans did not want to
be culturally dominated by the indigenous community whom they also regarded as inferior to
themselves. The Khoi were hunted like animals in the belief that their lives had no value. People of
‘mixed blood’ were also not generally accepted and this was one of the reasons why the Koranna
people, a group of nomadic Khoi, left the Cape. An attitude found increasingly among the settlers
was that certain work could be done only by the indigenous people and slaves. Governor Tulbagh’s
attempts at changing this attitude were unsuccessful. Some of the slaves pretended to be Khoi or
claimed that they were the children of slaves and Khoi mothers in order to be set free. A child born
on the farm where his parents had worked for a period of 18 months was regarded as an apprentice
on the farm (voluntarily or involuntarily) until he reached the age of 25 years. In 1809, after the
second British occupation in 1806, Caledon issued an ordinance that subjected the Khoi to pass laws
and they had to obtain permission from a magistrate if they wished to move from one area to
another. As we have seen in chapter 2, this was not much different from the pass laws enforced by
the apartheid government. The Khoi had to prove that they had a fixed address within 14 days or
they could be arrested for vagrancy. The farmers thus gained a hold on Khoi labour and made it
difficult for workers to seek higher wages.
Skills exercise 4.10
The account above suggests that the policy of apartheid outlined in chapter 2 had a historical foundation in the Dutch
settlement at the Cape and the subsequent British occupations. Using scholarly books and articles, research the concept
of colonisation and write an essay of 1 500 to 2 000 words outlining the concept. Are there other countries in Africa where
colonisation occurred? Does colonisation in Africa still occur? Present your findings to the class.
Turning to the relationship between the colonisation of the Cape by European settlers and the law,
the relevant political authority initially was the States-General, which looked after the common
interests of the provinces in the Netherlands as well as areas overseas. They assumed the power to
issue legislation that applied both in the Netherlands and to colonies overseas. The VOC concluded
treaties via the Here 17 and handled the administration of the overseas colonies. The orders of the
Here 17, as approved by the States-General, were regarded as the highest authority at the Cape. To
facilitate the VOC’s administration, a management committee known as the Raad van Batavia
(Council of Batavia) was appointed. The Council was tasked with implementing the instructions of
the VOC under the chairpersonship of the Governor-General. The juridical authority of the Council
of Batavia was mostly confined to criminal matters.
THINKING LIKE A LAWYER
What is juridical authority? How would this differ from administrative authority?
The earliest government at the Cape was established in the same manner as ships’ councils. The
head of the initial council at the Cape was a commanding officer who was later called the governor.
A council with both administrative and juridical functions assisted the governor. During the time of
Simon van der Stel,37 the council was divided into two councils, namely the political council (Raad
van Politie) and the Court of Justice (Raad van Justitie) that dealt with the administration of justice.
The Court of Justice had both civil and criminal jurisdiction. A right of appeal existed to the High
Court at Batavia. The colonists petitioned the council and as it received no instructions regarding its
jurisdiction, it assumed unlimited civil and criminal jurisdiction.
In subsequent years, various institutions were established for the administration of justice. The
fiscal officer was a member of the VOC and had to oversee the administration of justice. In 1676, a
lower court, namely the Council of Commissioners for Marital Matters (Collegie van
Commissarissen van Huwelijks Zaken) was instituted. This Council had to establish whether or not
the formalities for marriages had been complied with. In 1711, the Council received jurisdiction to
deal with less important civil matters. In 1682, a separate Court for Small Matters (Collegie van
Commissarissen van de Cleijne Saaken) was established. An Orphan Chamber was created in 1675
to look after the interests of widows and orphans. This Chamber may be regarded as the forerunner
of the present-day office of the Master or Orphan Master. In 1714, an office was established for the
registration of mortgages. This was the forerunner of the office of the Registrar of Deeds as it is
known today.
REFRAMING
In South Africa today a distinction is still made between the lower and the higher courts.38 What do you think is the
basis for this distinction? Collect newspaper clippings of court proceedings and try to determine whether the hearing
took place in a lower or a higher court.
Attorneys, advocates and notaries practised at the Cape from these early times. Notaries could also
practise as advocates, and both advocates and attorneys could appear before the Court of Justice.
During this time, however, the administration of justice was not of a high standard mainly because
of the lack of a proper court and appeal procedure. Although present-day historians state that the
early Cape courts did not refer to legal authority in their decisions, this is incorrect. The Court of
Justice had a library containing most of the important legal texts on which the courts often relied.39
4.3.1.2 The period 1795–1806
Few amendments to the administration of justice were made during the first British occupation
between 1795 and 1803. On 11 October 1795, a proclamation was issued stating that the law and
administration at the Cape would remain as it was before the occupation, until amended or repealed.
The court procedure was, however, streamlined and harsh punishments were replaced by less severe
ones.
Commissioner General De Mist managed to amend the administration of justice in the brief
period between 1803 and 1806 when the Cape fell under the rule of the Batavian Republic. He
radically changed the composition of the Court of Justice. The Court was composed of a president,
who had to have a doctorate in law, and six other members, all of whom had to be trained in law.
The Court still had jurisdiction over both civil and criminal cases, and also served as a Court of
appeal for the Colleges of Commissioners of Small and Marriage Matters and the Court of
Magistrates and Heemraden.
4.3.1.3 The period 1806–1827
The British attitude towards the application of Roman-Dutch substantive law remained the same
during the second British occupation, although the British still regarded the justice system as
substandard. As a result, after 1806, they made various amendments to the administration of justice
and the law of procedure. Not all of the amendments were appreciated. For example, the unpopular
office of the fiscal officer was reinstituted, but it was replaced soon afterwards in 1827 by the office
of the attorney-general. The governor appointed himself as the court of appeal in civil matters and
further appeal was allowed to the Privy Council in London. The governor and two assessors heard
criminal appeals, the College of Commissioners for Small and Marriage Matters was abolished in
1809, and circuit courts were introduced in 1811 in Graaff-Reinet and Uitenhage. In 1813, an order
was issued that all trials should be conducted in an open court.
REFRAMING
The Privy Council of the United Kingdom, or more specifically, its Judicial Committee, still exists as the final court of
appeal for the United Kingdom overseas territories and Crown dependencies, as well as for Commonwealth countries
that have retained the right to appeal to this body. Read more about the Judicial Committee of the Privy Council at
www.jcpc.gov.uk. Is there still a right to appeal to the Judicial Committee of the Privy Council from South African
courts?
The British made several attempts to anglicise the administration of justice. From 1 January 1827,
all legal processes had to be conducted and all legal documents written in English. Between 1806
and 1827 both Dutch and English had been used. Cases before the Court of Justice were in Dutch.
In the case of an appeal to the Court of Appeals, all court documents had to be translated into
English. In 1823, a commission consisting of Majors Colebrooke and Bigge was appointed to
investigate the administration of justice at the Cape on which they reflected rather poorly in their
assessment. The Colebrooke-Bigge Commission proposed that the legal system should not be
replaced by the English system immediately, but that it should gradually be replaced by English law
through legislation. On the recommendation of the Commission, English civil and criminal law of
procedure were introduced in 1828. They further proposed that only advocates of the English, Scots
and Irish bars be appointed as judges and be allowed to practise in the courts. The Court of Justice
was replaced by the Supreme Court in 1828. A court of appeal was instituted in 1886 which later
moved to Bloemfontein after 1910 where it still resides today.40
COUNTER POINT
The language of the administration of justice will always be a contentious issue because the assertion of the
authoritative language of the courts is an act of power that will be contested by those who speak a different mother
tongue. In July 2009, for instance, an attorney from Brits, Cornelus Lourens launched a Constitutional Court
application for the adoption of a Language Act, as prescribed in the Constitution. Lourens complained about the
dominance of English in state departments and courts. Ironically, Lourens’ papers, which were filed in Afrikaans, had
to be translated into English before the Departments of Arts and Culture and Science and Technology could
respond.41
On 25 February 2009, Legalbrief Today reported that proceedings in a North West court were conducted in
Setswana for the first time ever,42 and a rural court in KwaZulu-Natal similarly made history in February 2009 by
conducting proceedings in isiZulu. The report for the KwaZulu-Natal court indicates that ‘At present, in most courts,
even if the prosecutor, accused, defence attorney, presiding officer and witnesses are all able to speak the same
indigenous language, proceedings are conducted in English, or sometimes Afrikaans, and are translated into the
relevant language.’43 The report also notes that it is a Justice Department initiative to promote the use of indigenous
languages in court.
The English law also influenced substantive law in addition to its influence on the procedural law
discussed above. Merchants concluded contracts based on English law. This was a result of the
increase in trade with England after the first and second British occupations. The courts also began
to refer to English authorities and principles in such cases. An increasing number of advocates
schooled in English law began to practise at the Cape. They referred to English law when they
either did not know Roman-Dutch law or did not understand it. They then argued in court that there
was no difference between English and Roman-Dutch law, or that Roman-Dutch law had no
solution to offer. In some instances, trials were based purely on English law.
Legislation played an important role in the anglicisation process and the English law of evidence,
constitutional law and mercantile law were introduced in this manner. The mercantile subjects
replaced by English legislation were the law of negotiable instruments, the law of insolvency, the
law of insurance, patent law, and trademarks and copyright law. English law also partially
influenced the law of contract and the law of delict. Notably, despite the latter, English law did not
have a major influence on the law of property, the law of succession or the law of persons and
family law. However, in the case of the law of succession, the institutions of trusts and executors
were adopted from English law. British people living in the Cape drew up their wills in terms of
English law and the estate then had to be administered in terms of English law. In this way, the rules
pertaining to wills were also influenced by English law.
Skills exercise 4.11
Read the following passage from Calitz on the sources of South African insolvency law and then answer the questions
that follow.
Another significant event was the passing of Cape Ordinance 46 of 1828, which mentioned for the first time that in
future all insolvent estates had to be administered by an official referred to as the “Master of the Supreme Court”.
The Master took over the functions of the official sequestrator and also possessed many of the functions of the
Amsterdam commissioners serving in the Desolate Boedelkamers in Holland. These two events, namely the
introduction of the Charters of Justice and the passing of the Ordinance of 1828, represent two significant
milestones in the history of state regulation in South African insolvency law, as it signifies the origin of the Master of
the High Court as it is known today.
Cape Ordinance 64 of 1829 followed, representing the first Insolvency Act, reflecting certain detailed provisions as
they are presently known in South Africa. Although English law formed the basis of this new Ordinance, a substantial
number of Dutch principles were woven into the particular legislation and established most of the principles of our
present insolvency practice. Of significance was that the principle of transfer of ownership was established by this
Ordinance, which stated that subsequent to the granting of the sequestration order, the insolvent was divested of his
estate, which then vested in the Master and thereafter in the trustee. It is noteworthy that in terms of the Ordinance
of 1829 the court was thus responsible for the appointment of the trustee. According to Stander this was also the first
occasion where it was clearly indicated that in time the trustee became the owner of the estate assets, and this
development was probably due to the influence of English law.
A few statutory developments followed the (Cape) Ordinance of 1828 until the Master was firmly established in its
current form by the Insolvency Act of 1916, the predecessor to the current Insolvency Act. The Parliament of the
Union of South Africa in 1916 repealed all of the existing statutes regarding the law of insolvency previously in force
in the four provinces and substituted these with the Insolvency Act of 1916, which represented a uniform statute and
was dispersed throughout the Union of South Africa. The Insolvency Act of 1916 was amended by Act 29 of 1926
and Act 58 of 1934. Under the Insolvency Act of 1916 the appointment of a provisional trustee was dealt with by way
of a petition by the Master or a creditor to the court, and was contained in the petition for sequestration of the debtor
although the court had a discretion to appoint a provisional trustee, and was not compelled to have regard to the
wishes of any of the creditors. In fact, in some instances the courts disregarded the person nominated by the
creditors and appointed a person which it elected. Generally, however, the wishes of the majority of creditors
prevailed and the courts appointed the nominated applicant if such person was a fit and proper person and was
supported by a substantial body of creditors. Where the circumstances revealed urgency and the application was
supported by none of the creditors, or an insignificant number of them, the courts made the appointment but granted
leave to the creditors to have the appointment dismissed. The final trustee was elected at the first meeting of
creditors. The appointment was confirmed by the court and the Master subsequently issued a certificate which had
force throughout the Union. The Act also made provision for the event that should no trustee be elected and the
estate was not vested in a provisional trustee at the time of the meeting, the Master may appoint a trustee or apply,
at the cost of the estate, to the court to set aside the sequestration order. This procedure was a step closer to the
current procedure, where the sole responsibility and discretion to appoint a trustee in an insolvent estate lies with the
Master.
On 1 July 1936 the 1916 Insolvency Act was replaced by the current Insolvency Act of 1936, now in force as the
principal Act. The Insolvency Act of 1936 bestowed the power to appoint a provisional trustee on the Master, but
failed to state how such an appointment should be made. This effectively conferred on the Master an unfettered
discretion to appoint a person of choice as the provisional trustee of an insolvent estate. The Act of 1936 also firmly
established the Master as supervisory authority in our insolvency law. This Act became the main source of South
African insolvency law. The Act should however not be regarded as a complete statement of the law of insolvency
and does not interfere with any common law right consistent with its provisions. Smith mentions that to a
considerable extent several of our laws relating to insolvency law are declaratory of the common law.44
1. How was the English law of insolvency incorporated into South African law?
2. From the account given above can you identify any challenges that incorporating the law of another jurisdiction
involves?
4.3.1.4 The period 1828–1910
In 1827, a charter (oktrooi) introduced the English tradition of dividing the professions of advocates
and attorneys at the Cape. A jury system was introduced in 1831 and in some instances the
appointment of a jury was obligatory. The jury system was highly unpopular and was finally
abolished in 1969.
COUNTER POINT
Have you given any thought to whether you would like to become an advocate or an attorney, whether in the public
service or in private legal practice? As the account above indicates, the division of the legal profession into two
groups – advocates and attorneys – is associated with the English colonial influence although it also had other
historical antecedents. Wildenboer writes that:
[t]here has recently been a heated debate in South Africa about the possibility of moving away from a divided
legal profession and replacing it with a single one. The Legal Practice Bill, 2000 does not mention ‘attorneys’ or
‘advocates’, but instead only refers to ‘legal practitioners’. In 2002, a task team appointed by the Minister for
Justice and Constitutional Development recommended that a new Draft Bill be prepared anew [sic] and in 2009
the first working draft of the new Bill was published. The 2009 version of the Legal Practice Bill, however,
mentions that this matter is still open for discussion.45
Skills exercise 4.12
A trial by jury is a legal proceeding in which a jury either makes a decision or makes findings of fact which are then
subsequently applied by a judge. A trial by jury is distinguished from a bench trial where a judge or judges make all
decisions and apply the law.
1. Research the purpose and functioning of the jury trial system in the United States of America. Focus on the role of the
jury before and during the trial.
2. Does South Africa employ the jury system? What do you think are the advantages and disadvantages of a jury
system, especially in a country such as South Africa? Formulate an argument for or against the reintroduction of the
jury system in South Africa and present your findings to the class.
The Boer Republics of the Transvaal and the Orange Free State continued to use Roman-Dutch law.
In 1844, the Transvaal issued a Constitution consisting of 33 sections. One of the sections stated that
Dutch law (Hollandse wet) should apply. The law of criminal procedure and the law of civil
procedure that applied in the Cape before 1827 were enforced. Van der Linden’s Koopmans
Handboek was regarded as the law in force. A Supreme Court was instituted in Pretoria, and after
the second South African Boer War, another court was instituted in Johannesburg.
The Orange Free State was declared an independent republic in 1854 and a new Constitution and
independent judiciary were instituted in Bloemfontein. The Constitution stated that Roman-Dutch
law as applied before 1827 in the Cape should be applied in the Free State. The Constitution also
contained a bill of rights, but it applied only to the Boers and not to the other population groups.
The British annexed Natal in 1843. They continued to apply and respect Roman-Dutch law. Natal
was given self-governing status in 1857. A Supreme Court was instituted in Pietermaritzburg and
appeal was allowed to the Privy Council in London.46 Theophilus Shepstone, a colonial
administrator in Natal for over 30 years, had a major influence on the colony. Shepstone’s policies
did not, however, differ much from that of the Boers. He favoured segregation from the amaZulu,
who had to live in reserved areas under the authority of their own traditional leaders who fell under
his control. The new settlers quickly adapted to the ways of the old settlers.
Later, Governor Pine thought it was unrealistic to allow the tribes to reorganise in the tribal areas.
According to him, the European farmers could not keep up with African farmers who, in his
opinion, had ‘slave women’ to work in the fields. The division of land was such that for every 13
acres of a Zulu farmer, 6 000 acres were given to settlers. Some of the farmers allowed the amaZulu
to live and work on their farms. In this way, the amaZulu became mere bywoners or sharecroppers
on their ancestral land. The farmers planted sugar, but experienced a labour shortage. In 1859, the
farmers brought labourers from India, the forebears of the present-day Indian community.
After 1900, the law was characterised by the legislators’ increasing interference with the Roman-
Dutch principles of equity and justice. The governments in the colonies continued to advance the
rights and privileges of one section of the population over those of the other sectors, and to restrict
the rights and freedom of so-called non-white groups as much as possible. Magistrates had the
authority to suppress black revolt and were tasked with establishing semi-military policing. The
Supreme Court and Court of Appeal were purportedly apolitical, but the courts applied racial
legislation and other discriminatory legislation without condemnation thereof. Sexual relations
between black men and white women were even regarded as an offence in the period between 1902
and 1910,47 and segregation in prisons was introduced in this period. It is sufficiently clear, then,
that segregation and apartheid were not new features developed in 1948. They had been there from
the beginning of the Cape Colony under Dutch and later English rule. Various governments over
many years introduced racial discrimination by way of legislation which did not reflect the intrinsic
values of Roman-Dutch law, namely justice and equity as set out in Digesta 1.1.48
Skills exercise 4.13
Read the following extract from the decision of Transvaal Arcade Ltd v Rand Townships Registrar 49 and then answer the
questions that follow.
INNES, C.J.: The point at issue in these proceedings is the correctness or otherwise of the respondent’s refusal to
register in the name of the appellant a stand in the Township of Johannesburg. A controlling interest in the company
is held by two Cape Malays, who between them own all the shares but one. The Registrar refused to transfer the
stand as required, because he considered that the transaction fell within the prohibition of Act 37 of 1919. sec. 2.
And the question is whether it does.
The history of that clause was referred to in Transvaal Investment Co. v Springs Municipality (1922, A.D. p. 337). It
was passed at a time when conflicting decisions had been given on the question whether the provisions of Law 3 of
1885, which forbade the acquisition of land by Asiatics, as therein defined, operated to prevent such acquisition by
companies whose shareholders were Asiatics. And it dealt with the matter by enacting that from and after a specified
date the provisions of that law, which prohibited a person belonging to any of the native races of Asia from being an
owner of fixed property in the Transvaal, should be construed as also prohibiting the ownership of such property by
any company, in which one or more persons belonging to any of those races had a controlling interest. Companies
thus controlled by Asiatics were placed under the same disability as that to which by the Statute of 1885 their
dominating shareholders would have been individually subject.
The question therefore whether any such company is incapable of holding fixed property depends upon whether the
Asiatics who control it would fall under the prohibition of Law 3 of 1885. So that the present enquiry is narrowed
down to this, – Are the restrictive provisions of the law in question applicable to Cape Malays? If the answer be in the
affirmative then the registrar was justified in his attitude; otherwise he was not.
[…]
[Here follows the court’s reasoning:]
The restrictive provisions of the statute therefore apply to South African Malays and it only remains to ascertain
whether the two shareholders, who control the appellant company, are members of that class. Of that there can be
no question. The affidavits of the shareholders themselves candidly admit that they are Cape “Malays”, whose Malay
ancestors settled at the Cape in early times. No question of descent therefore arises. The appellant company being
one in which Malay shareholders hold a controlling interest is, therefore, prohibited by Act 37 of 1919, sec. 2 from
holding the land of which it seeks to obtain transfer. The result is harsh, not only in itself, but because South African
Malays are placed in a worse position than South African natives.
1. Comment on the Court’s application of Act 37 of 1919 – would you say that the Act was applied without condemnation
of its racial objectives?
2. What features of the process of legal reasoning allow the judge to avoid the question of the moral propriety of the law
the Court was considering?
3. Comment on the use of the term ‘natives’ in the last sentence of the extract. Is this an offensive term? Would it be
appropriate to use it in a contemporary judgment?
Skills exercise 4.14
Many acts of parliament were issued in the period 1910–1991 to bring about separate legal systems pertaining to black,
coloured, Indian and white people in South Africa. These laws created a separate administrative system for black people
and a separate land system. They segregated these communities, but also discriminated in favour of the white population
group. With reference to chapter 12, search the Jutastat or LexisNexis databases for some of the discriminatory laws that
used to be applied in South Africa.
1. Make a list of at least five discriminatory apartheid acts.
2. What was the aim of these acts? Who was tasked with implementing and enforcing these acts?
3. When were these acts repealed?
4.3.2 African customary law
South Africa’s history of African customary law has received much less attention than its common
law counterpart. Only the colonial and post-colonial periods have been recorded as far as the
recognition of customary law is concerned.50 Bennett states that ‘(c)ustomary law derives from
social practices that the community concerned accepts as obligatory.’51 If this is customary law,
what then is African customary law?
Olivier states that African customary law:
denotes all those legal systems originating from African societies as part of the culture of particular tribes or groups that
have continued to exist, supplemented, amended and or superseded in part by:
(a) changing community views and the demands of the changing world;
(b) contact with societies that function within other legal backgrounds;
(c) contact with and influence by other legal systems; and
(d) direct and indirect influence of foreign (non-indigenous) government structures.52
African customary law consists of customs and traditions that have been recognised over time,
evidencing a legal history that has spanned centuries. These customs and traditions were adapted to
changing economic, geographical and climatic factors. Social, cultural and religious factors also
played a role in the development of African customary law. The colonisers seldom took the general
philosophies, cultures and customs of Africans into account in their interpretation of customary law.
These factors include the notion of totality, time and the traditional beliefs regarding the Supreme
Being and the role of the ancestors.
The notion of totality implies that matters should be dealt with in a holistic manner. Detail was
nevertheless important to establish the truth or to analyse the facts of a case. People had to rely on
their memories for this detail as there were no written materials. A case before a traditional court
would be discussed in detail before a matter would be resolved. The indigenous notion of time also
had an influence on customary legal proceedings and led to many misunderstandings between
traditional communities and the colonisers. Time was regarded as the convergence of the past, the
present and the very near future. The future consisted of only those events that could be foreseen,
for example the birth of a baby or a harvest that would be gathered in the near future.
African religion also played a major role in the development of legal rules and the concept of
justice.53 Some African communities recognised a Supreme Being, ancestors, witchdoctors and
witchcraft. They considered, and still consider, the Supreme Being as the creator and provider of all
that is good on Earth. He was also the highest authority, the keeper of law and order, morals and
behavioural codes. The traditional leader or king had to apply laws and justice as the Supreme
Being would have, but the leaders and kings were nevertheless subject to the rules of the community
and could not regard themselves as being above the law. The Supreme Being acted through the
ancestors. The ancestors were the departed and the unborn, and a deceased person had to be
remembered to remain an ancestor. It was therefore important to keep in contact with the ancestral
land where the ancestor was buried and people feared that once the bond was broken, some
misfortune would happen.
Skills exercise 4.15
Find a copy of the Extension of Security of Tenure Act.54 Read section 6 dealing with burial rights and visitation rights to
graves together with section 31 of the Constitution. Explain whether you think these provisions are sensitive towards
traditional African culture and values or not.
It is important to understand the relationship between the ancestors and the Supreme Being. People
believed that many laws were derived from the Supreme Being or the ancestors. The ancestors had
to preserve law and order in the community. Misfortune in a community was a sign that there was a
problem with law and order and that someone had angered the ancestors. The ancestors and the
Supreme Being had to punish the person, otherwise more misfortune might occur. Some of the
actions that were punished were, for example, murder, robbery, defamation and cruelty to women.
To prevent the anger of the ancestors, communities developed more and more rules regarding law
and order. Each community developed its own way of restoring the peace, which could include the
payment of cattle, banning, whipping and the provision of labour to another person. The purpose of
the punishment was to restore the peace in the community rather than to have a winner who takes all
and a loser who may feel hatred. If the punishment was not severe, the final aim was reconciliation.
A person would rather accept less than he or she claimed to restore peace in the community.
Law and religion were regarded as one concept. This was similar to the situation with Roman law
and Germanic law in their initial phases. Law, order and religion formed part of the lives of people
who had to adhere to the customs and rules of the community. If one person did not, the whole
community might suffer as the ancestors might be angered.
As was seen earlier, from 1806 to 1828, the law in the Cape developed as a combination of
various legal systems. It differed from the law applied in the Netherlands. During this period, a
commission was appointed to write a report on African customary law. The English colonial powers
decided not to interfere with the local communities and to leave the communities to deal with law
and order in their own manner. They interfered only when peace was disturbed. There were
nevertheless many misunderstandings between the Europeans and the local inhabitants. If European
farmers left their cattle to roam freely, the amaXhosa regarded these animals as belonging to no one.
People have possession of the animals only if someone tends the cattle. The amaXhosa therefore
seized the cattle of the farmers and the farmers retaliated as they thought their animals had been
stolen. This led to many unnecessary wars on the eastern border of the Cape.
The African community recognised polygamy where a man may have more than one wife. The
European settlers regarded polygamy as a form of slavery and the payment of lobolo or bridewealth
as the purchase price of a wife. In truth, however, lobolo was paid as appreciation for the upbringing
of the wife and to serve as security to ensure that she was treated well. Such a marriage is a family
institution where two families are joined. According to the settlers, the African communities had no
family life and no formal structure. South African law never formally recognised polygamous
marriages until recently when, in 2000, the Recognition of Customary Marriages Act55 came into
operation to accord formal recognition to customary marriages for the first time.
REFRAMING
Based on the discussion above, do you think that people from different cultures and ethnic groups could conceivably
have different conceptions about what is right or wrong? Do you think that what one group regards as being ‘right’
another group might regard as being ‘wrong’? Can you think of any modern examples in the world and in South Africa
specifically of such diversity in views? Do you think that law has a role to play in bridging the differences between the
different perceptions of right and wrong held by different groups and, if so, in what way?
The various colonial authorities gradually interfered with the customary law of the African
communities. They amended the system of inherited traditional leadership and related institutions,
and passed legislation whereby the authorities appointed traditional leaders. This allowed them to
appoint leaders who supported the colonial authorities. As a result, people lost confidence in the
traditional courts as the true traditional leaders no longer headed these courts.
public policy: the often unwritten principles on which social laws are based
judicial notice: a rule in the law of evidence that allows a judge to accept the truth of certain facts without evidence
being led to prove the facts
Other judicial amendments were also accomplished by means of the Black Administration Act56
which determined that the presiding officer may apply customary law if it was not contrary to
public policy or the rules of natural justice.57 Separate courts, called commissioner courts, were
introduced to deal with customary law, which included the traditional customary courts. It was
explicitly stated that the courts may not find that the custom of lobolo was against the rules of
public policy. In 1986, the commissioner courts were abolished and the magistrates could take
judicial notice of customary law. This meant that they could recognise that this law existed without
its existence having to be proved. In all other courts the existence of a customary law had to be
proved in the court. By 1988, however, all courts could take judicial notice of and apply customary
law if it was not contrary to public policy and the rules of natural justice.
Today, the Constitution determines in section 212 that customary law must be applied except if it
is found to be contrary to the Constitution. A few African customary law rules have been challenged
before the courts. In Bhe v Magistrate, Khayalitsha; Shibi v Sithole; South African Human Rights
Commission v President of the Republic of South Africa,58 the Constitutional Court abolished the
rule of primogeniture, namely that only the eldest son of the main wife inherits the father’s estate.
In Shilubana v Nwamitwa,59 it controversially decided that a female may become the traditional
leader of her community.
Skills exercise 4.16
Imagine that you are a judge. You are confronted with a case that deals with the interpretation of a rule from African
customary law stating that only men can become leaders of their communities. The applicant, the party who brings the
application to the court, is a woman who is the eldest daughter of the traditional leader. The person opposing her claim,
the respondent, is her youngest sibling, her brother, who is of the opinion that he, as the only son, should become the
traditional leader. Based on the recognition of customary law in the Constitution and bearing in mind Chapter 2 Bill of
Rights, how would you, as a judge, go about arriving at a decision in this instance? What is constitutionally expected of
you?
From colonial times, the authorities and the courts amended the customary law of procedure. For
example, they determined that a person who was the subject of a trial should be present at the trial.60
In the then Natal, there was an attempt to codify Zulu law in the Natal Code of Zulu Law. This Code
was unfortunately compiled without consulting the amaZulu and many misinterpretations were
included in the Code. The Zulu customary law was changed to suit the English colonisers of that
time. The Governor of Natal ignored all petitions against the introduction of the Code.61
While there are many similarities between African customary law, Roman law, Germanic law and
South African law, there are significant differences as well. For instance, Roman and Germanic
heads of families had the right of life and death over their family members, while this rule did not
exist in African customary law or in South African law. Under the influence of Christianity, the rule
was eventually abolished in Roman and Germanic law. In Roman law and African law, the head of
the family may disinherit his heir if the heir acts disrespectfully towards him. In Roman law, South
African law and African customary law parents are liable for the contractual and delictual actions of
their children. Tests for the truth existed in both the Germanic and African customary law. In the
early Germanic law, the truth test of water was used, as was discussed in chapter 3. In the early
African customary law, persons accused of witchcraft had to drink poison to prove their innocence.
If they became sick but lived, they were regarded as innocent. If they died, they were guilty.
Another test was to take a metal ring out of a pot of boiling plant oil and put it on their tongue. If
they did not burn, they were not guilty.
Initially, ‘judges’ were not trained – that was the position in all communities except in present-
day South African law. However, African communities had knowledge of the law and knew if
justice had not been done. Interestingly, African customary law and Germanic law worked towards
reconciliation as opposed to the winner-takes-all system in Roman and present-day South African
law. There was rather an attempt to reconcile the parties before the court by requiring the offending
party to pay a reconciliation amount in the case of Germanic law and to hand over a symbolic prize
such as livestock in the case of African customary law.
While African communities have family courts where family matters are discussed in private, the
South African courts also deal with family matters, but not necessarily in private. One exception is
that the press may not publish anything on divorce cases. The possibility of dedicated family courts
has been under discussion since 1986, but the courts have not yet been introduced. Much can be
learnt from African communities with their use of family courts where these types of disputes are
dealt with in privacy and between members of the family.
4.3.3 Religious legal systems
The personal and family laws of religious communities such as the Hindu, Muslim and Jewish
communities have never formally been recognised in South Africa.62 Although the courts have dealt
with matters pertaining to these communities’ religious law, they have always been cautious about
interfering.63
Dreyer v Lyte Mason
In Dreyer v Lyte Mason,64 the Court gave effect to the Jewish rule that children born from a marriage where the
father is a member of the Jewish faith and the mother is not are regarded as non-Jews. Such children will be
regarded as Jews only on their formal conversion to the Jewish faith. The Court therefore granted custody and
control to the mother of the child as she had the duty of care for the religious upbringing of the child in terms of
Jewish law. It was also in the best interests of the child.
Ismail v Ismail
Sometimes, the courts applied their own ideas of public policy or natural justice. In Ismail v Ismail,65 the Court was,
for example, not prepared to recognise a monogamous Muslim marriage due to its potentially polygamous nature.
Section 15(3) of the Constitution now provides that the personal and family laws of religious
communities may be recognised subject to the Constitution. Although parliament has not issued
specific legislation to this effect, the courts have already had to deal with matters pertaining to
religious laws in relation to the Constitution.66
It is problematic for the courts to deal with disputes arising from religious legal systems. From a
constitutional perspective, some of these laws may seem discriminatory. Bekker et al warn that
traditional communities do not tolerate interference with their religious values, which they hold
sacred.67 This makes it difficult to reconcile traditional religious values with constitutional ones.
Despite this complication, the courts are approached to deal with matters pertaining to religious
laws or the non-recognition of institutions such as marriages.
Ryland v Edros
In Ryland v Edros,68 the High Court recognised Muslim marriage by implication.
Amod v Multilateral Motor Vehicle Accidents Fund
de facto: according to the facts
In Amod v Multilateral Motor Vehicle Accidents Fund,69 the Supreme Court of Appeal was prepared to move a step
further and regarded a Muslim marriage as a de facto monogamous marriage.
Daniels v Campbell NO
In Daniels v Campbell NO,70 a widow of a Muslim marriage approached the Constitutional Court to allow her to
inherit intestate71 and to claim maintenance from her deceased husband’s estate. Judge Sachs interpreted the word
‘spouse’ in the Intestate Succession Act72 and the Maintenance of Surviving Spouses Act73 to include marriages
concluded in terms of Muslim rites thus allowing the wife to claim maintenance from her husband’s estate.
4.3.4 Historical development of the law in an international context
The development of the ius gentium and trade law, as well as the publication of the work of Hugo de
Groot, led to the conviction that international rules were needed to regulate the relationship between
newly created states. Dugard74 indicates that although many scholars contributed to the
development of international rules, for example Vitoria from Spain and Gentilis from England, it
was Hugo de Groot and Cornelius van Bijnkershoek’s contributions that shaped the original
thinking about international law in the seventeenth and eighteenth centuries, and even today.75
Skills exercise 4.17
Find all the references to international law in the main text of the Constitution, in other words excluding the schedules.
List the provisions where this concept is found and then write a statement outlining what the Constitution says on the
topic of international law.
World Wars I and II brought this reality more to the fore especially with regard to rules that had to
be created to protect the lives of people in national states.76 After World War I, when Germany had
lost the war against the Allies, a treaty was concluded to establish the League of Nations. This took
place during the Paris Peace Conference in 1919. The member states77 of the League of Nations
agreed, among others, to refrain from war, to disarm and to settle disputes in a peaceful manner. For
example, the League of Nations gave South Africa the responsibility of administering South West
Africa, a former German colony, and which is today known as Namibia. Although the ideals set by
the League of Nations were noble, they were difficult to enforce.
A mere 20 years after the establishment of the League of Nations, World War II commenced in
1939 with Germany as the aggressor. The League of Nations was dissolved after the UN was
formed at the end of World War II in 1945.
The relationship between Britain and her former colonies was not precisely clear. South Africa
became a Union in 1910 after the Anglo-Boer Wars. At that time, the country was regarded as a
subject of the British Crown. Legislation still had to be signed by the Crown and South Africans
fought for Britain during World War I. In 1926, all Britain’s colonies became members of the British
Commonwealth of Nations. The members were regarded as separate communities that were equal
among each other, but they were still subject to the British Crown. The Statute of Westminster of
1931 confirmed that colonies such as South Africa were autonomous states. South Africa could then
participate as an independent member in the League of Nations. However, although South Africa
could participate as an independent member of the League of Nations and later the UN, it remained
a colony of the United Kingdom and received its independence only in 1961.
South Africa initially played a major role in the establishment of the UN immediately after the
conclusion of World War II. General Jan Smuts, who was then prime minister of South Africa, even
drafted the preamble to the United Nations Charter. Despite South Africa’s participation in the UN,
the country was criticised as a result of its discriminatory racial policies and laws. As a result, South
Africa was increasingly isolated from the international community and was not allowed to
participate in the General Assembly of the United Nations from 1974. After the first democratic
elections were held in 1994, South Africa was readmitted to the General Assembly in July of that
year.
The executive body of the UN is the Security Council, which has 15 members of which five are
permanent, namely France, Russia, China, the United States and the United Kingdom. The Security
Council was established in 1945. Each of these countries has the power to veto any decision of the
Security Council. This means, in effect, that the world is ruled by these five nations. Many nations
in the world protest against this and advocate for the Security Council to be reformed and to be
more representative of the international community. South Africa plays a major role in this regard.
The General Assembly elects non-permanent members to the Security Council for a period of two
years and South Africa became a non-permanent member on 1 January 2011.78
International law also deals with many other issues. According to Shaw, ‘the range of topics
covered by international law has expanded’79 due to the complexities of contemporary society and
the number of participants in the system. The need for the protection of the environment, for
example, has brought states together to conclude treaties relating to the environment.
Dispute resolution between states is a difficult matter. If parties to a dispute agree, they may take
their cases to the International Court of Justice, the International Criminal Court or the International
Tribunal for the Law of the Sea. The International Court of Justice was established by the Charter of
the United Nations. The International Criminal Court prosecutes individuals for the ‘most serious
crimes of concern to the international community as a whole’. The predecessors of the International
Criminal Court were the Nuremberg and Tokyo tribunals (ad hoc tribunals), established after World
War II and that tried German and Japanese individuals accused of crimes against humanity, and the
Yugoslav and Rwanda War Crimes Tribunals of the mid-1990s.
Skills exercise 4.18
Search for the Rome Statute on the Internet and read articles 1, 5, 6, 7, 8 and 8bis. Outline the jurisdiction of the
International Criminal Court in no more than two pages. Discuss in class whether the perpetrators of politically motivated
crimes under the system of apartheid could be tried by the International Criminal Court and if so, on what basis.
4.3.5 Historical development of the law in a regional context
The United Kingdom and European countries colonised Africa from the sixteenth century
onwards.80 The contemporary borders of African states were mostly determined at the Berlin
Conference of 1884 in Germany. Viljoen states that the boundaries were ‘an artificial and temporary
construct that relied on the border lines invented by European powers […] Serving colonial interests
rather than those of the people defined ‘in’ or ‘out’ these boundaries were mostly arbitrary and did
not take into account the composition of the resulting population’.81
Importantly, Ghana gained independence in 1957 after which several other African states
followed. The independent states began to discuss the possibility of regional cooperation and unity
in order to regulate law and order in their own regions. The African states concluded the African
Charter in 1963, establishing the Organisation for African Unity (OAU) as a result. Initially, the
OAU’s purpose was to try to rid Africa of colonisation and to strengthen and unite the African
countries. Unfortunately, no attempts were made to address border disputes or conflicts between
countries. South Africa joined the OAU only in 1994. Gradually, various treaties were concluded
between African states, ranging from the preservation of the rights of women and children to a
prohibition on the dumping of hazardous waste on African soil. The main document of the OAU
was, however, the African Charter on Human and Peoples’ Rights, which was concluded in 1981.
The African Charter recognises human rights, including socio-economic and cultural rights.
The AU was established in 2000 as successor to the OAU with 53 members, of which the heads
of state form the General Assembly. The General Assembly formulates policies, considers reports
from states and concludes treaties, among other functions. In 2002, a Peace and Security Council
was introduced. The Pan African Parliament that was established in 2004 regularly meets in South
Africa. From 2011, it was supposed to have legislative powers. However, by 2011 the process was
not taken further and the Pan African Parliament still does not have legislative authority. It can thus
only make proposals to the AU. It seems that most of the African countries are not prepared to
accept an outside body imposing on their sovereignty. This may hamper progress towards the AU’s
goal of a United States of Africa. Despite these obstacles, an African Court of Justice and an
African Court on Human and Peoples’ Rights have been established.
The countries in the southern region of Africa also decided to regulate their own affairs and
established the SADC by means of the SADC Treaty and Declaration in 1992. SADC has 15
member states that have concluded various protocols ranging from health, mining and corruption to
fisheries and energy.
In terms of article 9 of the Treaty, a SADC Tribunal was established in 1992. The Tribunal was
only constituted in 2005 and is now an active SADC institution.
Campbell v the Republic of Zimbabwe
In the 2007 decision of the SADC Tribunal in Campbell v the Republic of Zimbabwe,82 a group of farmers who had
been dispossessed of their land in Zimbabwe approached the SADC Tribunal. They stated that they had been
forcibly dispossessed of their land without compensation and denied leave to approach the Zimbabwean court for
redress. The Tribunal decided that the parties before it had been discriminated against, that they did not have proper
redress to their national courts, and that they should be compensated for the confiscated land. As SADC does not
have proper mechanisms to enforce the Tribunal’s decisions, Zimbabwe decided to ignore its judgments.83 However,
the decision of the Tribunal is already an indication that the communities in SADC are prepared to ensure the
preservation of law and order.
Skills exercise 4.19
Obtain a copy of the judgment in the aforementioned Campbell case from the Internet (http://www.sadc-
tribunal.org/docs/case022007.pdf) and read the judgment. Identify the legal questions the Tribunal had to decide and the
arguments advanced by both the applicants and the respondent respectively.
THIS CHAPTER IN ESSENCE
1. Introduction
1.1 Post 1500 sees the introduction of national states with their own legal systems.
1.2 Roman law is still studied and is also received in the national legal systems of
Europe.
2. The European contributions to legal development
2.1 France
• During the sixteenth and seventeenth centuries humanism developed across
Europe.
• The Humanists argued for a return to the study of the original sources.
• Donellus and Cuiacius tend to have been cited most frequently as authorities
by the South African courts.
• The Humanists’ research methods influenced later Dutch writers such as Noodt
and Hugo de Groot, and, as a result, sixteenth-century humanism forms the
basis for legal-historical research in South Africa today.
2.2 Germany
• In the seventeenth and eighteenth centuries, a legal school called the Usus
Modernus Pandectarum advocated the development of German national law.
The most important writers of this school are Stryk and Leyser.
• In the eighteenth and nineteenth centuries, the Historical School was
established. The School was against the codification movement and studied
classical Roman law only. Von Savigny, Hugo and Puchta were important
members of the School.
• The Pandectists followed in the nineteenth century and developed abstract
terminology, rules and definitions to systematise the law. One of the important
writers is Windscheid.
2.3 Spain
• Spanish writers such as Vitoria, Soto and Molina exerted a major influence on
one of the most well-known Roman-Dutch lawyers, namely Hugo de Groot. As
a result, equity and justice feature prominently in De Groot’s works.
2.4 England
• England never experienced a fully fledged reception of Roman law.
• In 1215, the Magna Carta was enacted. This document described the rights of
the nobility and the common people in reaction to abuses perpetrated by King
John.
• In the nineteenth century, English law was extensively reformed and made
uniform.
• The rule of precedent, or stare decisis, where a court is bound by its own
previous decisions or the decision of a higher court, developed over time in
England. Today, it remains a significant feature of the South African legal
system.
2.5 The Netherlands
• During the seventeenth century, Roman-Dutch law flourished in the
Netherlands and was transferred to the Cape of Good Hope.
• The most important jurist of the fourteenth and fifteenth centuries was Philips of
Leiden. Later jurists include Wielandt, Damhouder and Everardus. Other
authors were Hugo de Groot, Paulus and Johannes Voet, Vinnius, Matthaeus
II, Groenewegen, Van Leeuwen, Huber, Noodt and Van Bijnkershoek who are
still referred to in South African courts today.
• During the eighteenth century important writers were Van der Linden and Van
der Keessel. Van der Linden’s Koopmans Handboek (Merchant’s Textbook)
was declared the official ‘law book’ of the South African Republic in 1858.
3. Historical legal developments in South Africa
3.1 Common law
• The period 1652–1795 was characterised by Dutch influence as a result of the
establishment of a refreshment station at the Cape of Good Hope.
• During the period 1795–1803, the Cape was occupied by the British who made
some amendments to the administration of justice.
• During the period 1806–1827, the British made various amendments to the
administration of justice and the law of procedure.
• During the period 1828–1910, the Boer Republics of the Transvaal and the
Free State continued to use Roman-Dutch law. The British annexed Natal in
1843 and continued to apply and respect Roman-Dutch law.
3.2 African customary law
• African customary law consists of customs and traditions that have been
recognised over time, evidencing a legal history that has spanned centuries.
Social, cultural and religious factors also played a role in the development of
African customary law.
• The various colonial authorities gradually interfered with the customary law of
the African communities.
• Other judicial amendments were also accomplished by means of the Black
Administration Act.
• Today, the Constitution determines that customary law must be applied except
if it is found to be contrary to the Constitution.
3.3 Religious legal systems
• The Constitution provides that the personal and family laws of religious
communities may be recognised subject to the Constitution.
3.4 International context
• South Africa initially played a major role in the establishment of the UN after
World War II. As a result of apartheid, South Africa was not allowed to
participate in the General Assembly from 1974, but was readmitted in 1994.
3.5 Regional context
• The AU was established in 2000 as a successor to the OAU.
• The SADC was established in 1992 to regulate the affairs of southern African
countries.
Notes
1 See also on European legal history, Lesaffer, R. 2009. European Legal History: A Cultural and Political
Perspective.
2 See further Van Caenegem, R.C. 1985. Geschiedkundige Inleiding tot het Privaatrecht, pp. 71–73.
3 The discussion of the Humanists is generally based on Borkowski, A. and Du Plessis, P. 2005. Textbook on
Roman Law 3rd ed.; Hahlo, H.R. and Kahn, E. 1968. The South African Legal System and Its Background;
Robinson, O.F., Fergus, T.D. and Gordon, W.M. 1985. An Introduction to European Legal History; Thomas, Ph.J.,
Van der Merwe, C.G. and Stoop B.C. 1983. Historical Foundations of South African Private Law; Van Zyl, D.H.
1979. Geskiedenis van die Romeins-Hollandse Reg.
4 1986 (2) SA 656 (C).
5 See also Thomas et al supra n 3 at 56.
6 See Borkowski and Du Plessis supra n 3 at 370; Hahlo and Kahn supra n 3 at 509–511; Lokin, J.H.A. and
Zwalve, W.J. 1986. Hoofdstukken uit de Europese Codificatie-geschiedenis, pp. 135–179; Robinson et al supra n 3
at 335–352; Van Zyl supra n 3 at 207–225.
7 2001 (1) SA 464 (C).
8 The discussion on Germany is generally based on Borkowski and Du Plessis supra n 3; Hahlo and Kahn
supra n 3; Thomas et al supra n 3; Van Zyl supra n 3.
9 The courts referred to Leyser in, for example, Absa Bank Ltd t/a Bankfin v Stander t/a CAW Paneelkloppers
1988 (1) SA 939 (C) at para 945H; De Beer v Zimbali Estate Management Association (Pty) Ltd 2007 (3) SA 254 (N)
at para 20.
10 See, for example, Agha v Sukan 2004 JDR 0195 (D) at para 26I; Representative of Lloyds v Classic Sailing
Adventures (Pty) Ltd 2010 (5) SA 90 (SCA) at para 98A–B.
11 One of the important writers is Windscheid who wrote the Lehrbuch des Pandectenrechts – it later served as
a source for the German codification. Those who were opposed to his way of studying Roman law were Von Jhering
and Puchta.
12 On the history of the codification of German law, see Lokin and Zwalve supra n 6 at 182–238.
13 2007 (4) SA 395 (CC).
14 The discussion on English history is generally based on the following sources: Lokin and Zwalve supra n 6;
Robinson et al supra n 3.
15 Anglo-Saxon refers to the Germanic tribes who invaded and settled parts of Britain in the period between
approximately 450 and 671. The law of that time is also referred to as Anglo-Saxon law although the law consists of
the customary law of different tribes.
16 See also the discussion of truth tests in Germanic law in ch 3.
17 King Henry 1 reigned from about 1068/1069–1135.
18 King Henry II reigned from 1154–1189.
19 King John reigned from 1199–1216. See a translation of the Magna Carta. 1215. Constitution Society.
[Online].
Available at: http://www.constitution.org/eng/magnacar.htm [13 February 2012].
20 Adapted from: The Majlessi Law Firm. 2009. Legal history of England. [Online].
Available at: http://www.legalmetro.com/library/legal-history-of-england.html [12 March 2012].
21 See also chs 5 and 8.
22 1979 (4) SA 208 (ZR).
23 Van Zyl supra n 3 at 284–286. See Borkowski and Du Plessis supra n 3 at 380–385 for a more detailed
exposition of the influence of Roman law on Scots law.
24 The discussion that follows is generally based on Borkowski and Du Plessis supra n 3; Du Plessis, L. 1999.
An Introduction to Law 3rd ed.; Hahlo and Kahn supra n 3; Thomas et al supra n 3; Van Zyl supra n 3. On the history
of the codification, see De Smidt, J. Th. 1977. Compendium van de Geschiedenis van het Nederlands Privaat
Recht, pp. 158–162; Lokin and Zwalve supra n 6 at 239–294.
25 See the discussion in ch 6.
26 It is important to note that Damhouder plagiarised the work of his teacher, Wielandt. See the discussion on
plagiarism in ch 2.
27 De Groot, also known as Hugo Grotius, wrote Inleydinge tot de Hollandse Rechtsgeleerdheid (Introduction to
Dutch Jurisprudence) in 1631 and De Iure Belli ac Pacis (Law on War and Peace) in 1625, his book on natural law
that made him the father of international law.
28 Vinnius was a Humanist and may only be used as authority for classical Roman law.
29 Matthaeus II wrote De Criminibus (On Criminal Matters) which was translated by Hewett, N.L. and Stoop,
B.C.
30 Groenewegen is known for the Tractatus de Legibus Abrogatis, a treatise that examined the extent to which
the law applied at the time had departed from Roman law.
31 Van Leeuwen wrote a book called Rooms Hollands Regt (Roman Dutch Law). His use of the term Roman
Dutch law was then generally used to refer to the law in the seventeenth century in the Netherlands.
32 Huber and Noodt were also Humanists and may only be used as authority for classical Roman law.
33 Gane, P. 1955. The Selective Voet: Being the Commentary on the Pandects (Paris ed. of 1829) and the
Supplement to That Work by Johannes van der Linden.
34 Section 1 of the Constitution of 1858 declared: ‘Het Wetboek van Van der Linden blijft (voor zoover zulks niet
strijd met de Grondwet, andere wetten of Volksraadbesluiten) het Wetboek van deze Staat.’ (The law book of Van
der Linden remains (as far as it is not in conflict with the Constitution, other laws or national council decisions) the
law book of this state.)
35 See also the discussion in ch 2.
36 The discussion of the development of the common law from 1652 to 1910 is generally based on De Vos, W.
1992. Regsgeskiedenis; Du Plessis supra n 24; Hahlo and Kahn supra n 3; Thomas et al supra n 3; Van Zyl supra n
3; Visagie, G.G. 1969. Die Regsgpleging en Reg aan die Kaap.
37 Simon van der Stel was appointed commander in 1679 and became the first governor in 1691.
38 See also ch 8.
39 Most of these books currently form part of the book collection of the Supreme Court in Cape Town.
40 See also ch 8.
41 See Don’t blame state for dominance of English. 2009. Legalbrief Today, 8 July. [Online].
Available at: http://www.legalbrief.co.za/article.php?story=20090708084939139 [13 February 2012].
42 See North West court proceedings held in Setswana. 2009. Legalbrief Today, 25 February. [Online].
Available at: http://www.legalbrief.co.za/article.php?story=20090225082553352 [13 February 2012].
43 See Rural KZN court makes history. 2009. Legalbrief Today, 11 February. [Online].
Available at: http://www.legalbrief.co.za/article.php?story=20090211100109815 [13 February 2012].
44 Calitz, J. 2010. Historical overview of state regulation of South African insolvency law. Fundamina, 16:1 at
22–25.
45 See Wildenboer, L. 2010. The origins of the division of the legal profession in South Africa: A brief overview.
Fundamina, 16:199 at 200–201.
46 On the courts in the nineteenth century in the Cape and Natal, see Van Niekerk, G. 2010. The superior
courts and legal pluralism in the last decade of the nineteenth century. Fundamina, 16:472.
47 See also generally, Chanock, M. 2001. The Making of South African Legal Culture 1902-1936: Fear, Favour
and Prejudice.
48 See Van der Vyver, J.D. 1975. Die Beskerming van Menseregte in Suid-Afrika, pp. 52–182.
49 1923 AD 442.
50 The following discussion is based mainly on Du Plessis, W. 1992. Afrika en Rome: Regsgeskiedenis by die
kruispad. De Jure, 25:289 at 292–296.
51 Bennett, T.W. 2004. Customary Law in South Africa, pp. 1–33. These laws are not readily available and it is
sometimes difficult to distinguish between the so-called living law, i.e. how the people on the ground really interpret
customary law, and the written law that is an interpretation by those who researched it. See also ch 5.
52 Olivier, N.J.J. et al. 2009. Indigenous Law. In Law of South Africa 2nd ed, p. 32 at para 1.
53 Remember that it is not really possible to describe African religion in Western terminology – always keep this
in mind when reading or writing about it. African religions should be studied in the context of African culture.
54 62 of 1997 (the ‘Extension of Security of Tenure Act’).
55 120 of 1998 (the ‘Recognition of Customary Marriages Act’).
56 38 of 1927 (the ‘Black Administration Act’).
57 Most of the countries that were colonised by the English still include a similar clause in their legislation or
constitutions – some of them referred to it as the ‘repugnancy clause’. See also Hooker, M.B. 1975. Legal Pluralism,
pp. 129–131; Van Niekerk, G.J. 2010. The superior courts and legal pluralism in the last decade of the nineteenth
century. Fundamina, 16:472.
58 2005 (1) SA 580 (CC).
59 2009 (2) SA 66 (CC).
60 Olivier et al supra n 52 at para 249.
61 The English authorities in the Cape Colony introduced the Transkeian Penal Code, based on the Indian
Penal Code, in the former Transkei in 1886 – the rules in the Code were foreign to the amaXhosa and did not relate
to their customs or traditions.
62 For the specific rules of these legal systems see Bekker, J.C., Rautenbach, C. and Goolam, N.M.I. 2006.
Introduction to Legal Pluralism in South Africa 2nd ed.; Doi, A.R. 1984. Shariah: The Islamic Law; Gandhi, B.M.
2008. Hindu Law 3rd ed.; Menski, W.F. 2003. Hindu law: Beyond Tradition and Modernity; Pearl, D. 1987. A
Textbook on Muslim Personal Law 2nd ed.; Schacht, J. 1991. An Introduction to Islamic Law.
63 See, for example, Dreyer v Lyte-Mason 1948 (2) SA 245 (W); Peck v Katz 1957 (2) SA 567 (T); Pillai v Pillai
1963 (1) SA 542 (D); Ratanee v Maharaj 1949 (4) SA 1048 (D); S v Vengetsamy 1972 (4) SA 351 (D); Van Erk v
Holmer 1992 (2) SA 636 (W).
64 1948 (2) SA 245 (W).
65 1983 (1) SA 1006 (A).
66 Amod v Multilateral Motor Vehicle Accidents Fund 1999 (4) SA 1319 (SCA); Daniels v Campbell NO 2003 (9)
BCLR 969 (C); Kalla v The Master 1995 (1) SA 261 (T).
67 Bekker et al supra n 62 at 153.
68 1997 (2) SA 690 (C).
69 1999 (4) SA 1319 (SCA).
70 2003 (9) BCLR 969 (C).
71 Intestate means that the husband died without making a will.
72 81 of 1987 (the ‘Intestate Succession Act’).
73 27 of 1990 (the ‘Maintenance of Surviving Spouses Act’).
74 Dugard, J. 2005. International Law 3rd ed., pp. 11–12.
75 See also ch 6 for a discussion of international law.
76 Dugard supra n 74 at 1. The insights into the history of international law were gained mainly from Dugard.
However, due to the extensive history of international law, only a few highlights from this history are provided as an
introduction.
77 To become a member of a treaty, a state must sign and ratify the treaty (similar to a written set of rules or a
contract). Once a treaty is signed, member states could, in principle, enforce the obligations set out in the treaty
against each other.
78 UN Security Council Members. 2012. Membership in 2012. [Online].
Available at: http://www.un.org/sc/members.asp [13 February 2012].
79 Shaw, M.N. 2008. International Law 6th ed., p. 48.
80 The discussion in this section is mainly based on Du Plessis, M. 2005. The African Union. In Dugard, J.
International Law 3rd ed., pp. 546–568; Van der Linde, M. 2009. Regional environmental law under the African
Union. In Strydom, H.A. and King, N.D. Fuggle and Rabie’s Environmental Management, p. 176; Viljoen, F. 2007.
International Human Rights Law in Africa, pp. 157–475.
81 Viljoen supra n 80 at 159.
82 SADC. 2009. In the Southern African Development Community (SADC) Tribunal Windhoek, Namibia.
[Online].
Available at: http://www.sadc-tribunal.org/docs/case022007.pdf [13 February 2012].
83 Fick v the Republic of Zimbabwe Case no SADC (T) 01/2010, delivered 16 July 2010 and Campbell v the
Republic of Zimbabwe Case no SADC (T) 03/2009, delivered 5 June 2009.
Chapter 5
Sources of law and legal authority
5.1 Introduction
5.2 Defining sources of law
5.2.1 The law as rules
5.2.2 The reasons for recognising sources of law
5.3 Sources of South African law
5.3.1 Constitution
5.3.2 Legislation
5.3.2.1 National legislation and regulations
5.3.2.2 Provincial legislation
5.3.2.3 By-laws
5.3.3 Judicial precedent
5.3.4 International, foreign and regional law
5.3.5 Common law
5.3.6 Custom
5.3.7 Indigenous law
5.3.8 Modern-day commentary on the law
This chapter in essence
5.1 Introduction
This chapter aims to familiarise you with the concept ‘sources of law’, the diverse range of sources
of South African law, and the importance and practical relevance of each source. The different
sources of law constitute the legal authorities with which lawyers work. These sources define the
law and are thus extremely important for lawyers and indeed the whole of society. People cannot
live in a solidly built house if it has not been carefully built by means of a calculated construction of
different types of building materials and building blocks. The law is like a habitable house that is
continuously maintained and the sources of law are the building blocks of that house.
This chapter starts with an investigation of the concept ‘sources of law’ and then reflects on why
we need sources of law. The major part of the chapter is then devoted to a discussion of the primary
and secondary sources of South African law. The knowledge presented in this chapter constitutes a
first and necessary step to understanding the construction and meaning of the law in solving legal
problems. (See chapter 13.)
5.2 Defining sources of law
5.2.1 The law as rules
In its simplest form, the law comprises authoritative rules that society has formulated to regulate the
relationships between people and between people and things. Like other norms such as religion and
ethics, the law is a means of creating and maintaining order, peace and prosperity.
PAUSE FOR REFLECTION
The law as comprising both rules and principles
It is possible to describe the law as comprising both rules and principles. When you study legal philosophy at a later
stage, you will have the opportunity to analyse this viewpoint critically as well as other related viewpoints about the
theoretical make-up of the law held by different legal philosophers. For example, the legal philosopher, Ronald
Dworkin, has published widely on the idea of the law comprising and being determined by moral principles. He is
especially famous for his theory of law as integrity, in which the law must be interpreted in terms of consistent and
communal moral principles, including justice and fairness. However, for purposes of this chapter, we discuss the law
as rules.
Skills exercise 5.1
Remembering what you have learnt about law in the first few chapters of this book, consider the legal philosopher Fuller’s
rather gloomy view of law and rules:
To say that man can reshape himself by rules is to confess that he is a creature who has to put a halter on himself
before he can live safely with his fellows. If this is something no other animal can do, it is something no other animal
needs to do, for mankind is the only species that chooses its own kind as its preferred prey.1
1. Why could we describe this passage from Fuller as ‘gloomy’?
2. What in your view is the primary purpose of Fuller’s metaphorical ‘halters’ in modern society?
3. Why do you think there is a need for legal rules in society?
4. If there is a need for legal rules, who should ultimately create them? On whom should they be binding?
5. Where could you typically find legal rules?
While we now know that the law comprises legal rules made by society for society, we still do not
know where and how these rules originate and why they have the inherent ability to regulate society.
Surely not everyone in society should have the authority to formulate rules at will and then enforce
them by whatever means they think appropriate? Moreover, if rules are made, do we necessarily
write them on a piece of paper and publish them in a book or document, or do legal rules simply
exist once verbally articulated? Who should formulate legal rules and, once formulated, where
should we deposit and store these rules? Where can we find them and why would we want or need
to find them again after they have been created?
Skills exercise 5.2
Read the extract below from Watson’s introduction to Sources of Law, Legal Change, and Ambiguity and then answer the
questions that follow.
Humans are social animals, and various mechanisms, such as religion, accepted standards of ethical behaviour,
and good manners, have developed to enable them to live (relatively) peacefully in society. Law is one such
mechanism, and its distinguishing feature, I believe, is the availability of a process which has the necessary function
of inhibiting further unregulated conflict by means of a decision. Within the context of the process law has two
necessary roles: a claim of legal right or power is needed to call the process into being, and law is used to validate
the decision. To fulfil these functions, law, whether it is regarded as already existing and simply to be discovered, or
made by preceding conscious human determination, or to be made during the instant case, has to achieve some
express linguistic formulation. And the formulation to have effect must contain within it, at least implicitly, the seeds
of legitimacy.2
1. Read this abstract carefully and try to reformulate Watson’s view in your own words. Focus on what the law as a
mechanism is used for in society as well as on the function of the law as part of regulating the relationships between
people as social animals, as well as between people and things.
2. What, in Watson’s view, is the distinguishing feature of law and what does this feature aim to do?
3. What is a prerequisite for law to be able to fulfil its primary function?
4. What do you understand by ‘express linguistic formulation’ and what forms of linguistic formulation do you think the
author is referring to?
5.2.2 The reasons for recognising sources of law
For law to fulfil its purpose in society, legal rules must have some origin – to have authority, they
must be formulated by those people and institutions that society has designated for this purpose (the
‘seeds of legitimacy’ in Watson’s words above). Moreover, legal rules must be expressed in some
linguistic way, and they must be collected in some form, stored, updated and made available for the
benefit of the entire society.
source of law: an authoritative origin of legal rules
Black’s Law Dictionary defines source of law as: ‘[s]omething […] that provides authority […] a
point of origin for law or legal analysis.’3 The first reason for recognising specific sources of law is
that they tell us which institutions in society have the capacity to develop prescriptive norms, that is,
rules, that we bestow with the authoritative status of law. The rules which such institutions develop
therefore have a certain measure of power and command which results in people being willing to
comply with them. For such rules to have legitimacy, the rule that only certain institutions have the
power to make and extend the law must have been mandated by the majority of the society bound
by the law. This is usually accompanied by rules relating to how rules must be made or changed,
called procedural safeguards, as well as safeguards relating to the substantive content of the law,
such as the rights articulated in the Bill of Rights.
Second, knowing which kinds of rules have the authority of law in a particular society assists in
creating legal certainty. This, in turn, contributes to an orderly and, hopefully, peaceful and just
society. Those at the receiving end of the law should know what the law provides and requires. The
sources of law ensure that the people in charge of making and enforcing the law as well as the
people who should abide by the rules of the law know what the law says. Sources of law ensure that,
in principle, everyone has equal access to the content of the law and that the law is known. People
would have little faith in the law if legal rules were to be made on an ad hoc and random basis
without an accessible way for them to establish what the law is at any given point in time. Legal
certainty is at the core of the rule of law (discussed in chapter 2) and without the sources of law it
would be impossible to establish and maintain legal certainty.
Finally, the recognised sources of law provide us with information on the content of the law.
Some sources indicate what the law actually says, while others explain, discuss or critique the law.
Primary sources refer to law generated by institutions vested with law-making authority, for
example parliament and the provincial legislatures, or to judgments of the courts. Secondary
sources of law essentially provide further information on primary sources of law. They are not
binding, but serve as supplementary authority only. These could be descriptive, explanatory or
evaluative insofar as they reflect or critically comment on the primary sources. Secondary sources
include sources containing materials created by lawyers in practice, academia and others that
provide an overview of and critically comment on the content of constitutions, statutes, judicial
precedent and various other primary sources.
Skills exercise 5.3
Using the skills acquired in chapter 12, find and read the Constitutional Court decision in Le Roux v Dey 2011 (3) SA 274
(CC). Then find and read the following two scholarly articles and answer the questions that follow:
• Barnard-Naudé, J. and De Vos, P. 2011. The heteronormative observer: The Constitutional Court’s decision in Le Roux
v Dey. South African Law Journal, 128(3):407.
• Fagan, A. 2011. The Constitutional Court loses its (and our) sense of humour. South African Law Journal, 128(3):395.
1. Which of the sources referred to above are primary and which are secondary sources of law?
2. Explain what the secondary sources add to our understanding of the primary sources.
5.3 Sources of South African law
Having outlined sources of law as a concept, what are the sources of South African law? To answer
this question, it is firstly important to determine whether South Africa has a codified or uncodified
legal system.
In his book, An Introduction to Law, Du Plessis describes a codified legal system as one which
has been ‘systematically recorded in a comprehensive code (or “law book”) which serves as primary
source of its origin and knowledge about it’.4 An uncodified legal system is a system in which the
sources of law have not been systematically recorded in any way. Instead, the sources are scattered
across many different written and unwritten sources which could include legislation, customary law,
case law and common law.
South Africa has an uncodified legal system because it originates from a wide range of sources of
law including the Constitution, statutes, judicial precedent, customary law, common law (Roman-
Dutch and English law), indigenous law, and international and foreign law. Mostly, therefore, it has
not been systematically recorded in a comprehensive code or book like, for example, the German
Civil Code (Bürgerliches Gesetzbuch). The remainder of this chapter will provide an overview of
each of these sources.
5.3.1 Constitution
The ultimate source of law in South Africa is the Constitution. The preamble tells us that the
Constitution is the supreme law of the country and the Constitution reiterates this in sections 1 and
2. The supremacy of the Constitution is manifested in it serving as the yardstick or standard against
which all other laws, as well as conduct arising from such laws, are evaluated. If any law or conduct
does not meet this standard, it is considered unconstitutional and therefore invalid. The Constitution
thus sets the universal standard for all other sources of law in South Africa.
Apart from providing this constitutional standard, the Constitution is also a direct source of law
because it is the source of constitutional values, fundamental rights, as well as the organisation,
operation and powers of government. Because it also provides for the constitutive elements of the
state (hence ‘constitution’), over and above everything else, it also literally provides the origins of
the state and the manner in which the state should function. For example, it provides for the three
spheres of government, namely national, provincial and local, and the different forms of state power
– legislative, judicial and executive. It also provides for a range of state institutions supporting a
constitutional democracy, such as the Public Protector, the Human Rights Commission, the Auditor-
General and the Electoral Commission, among others. It has chapters on public administration,
traditional leaders, security services and finance. It contains a number of schedules, the most
important of which are those setting out the allocation of powers among the national, provincial and
local spheres of government (Schedules 4 and 5).
Although the Constitution was initially cited as a particular Act of Parliament (Act 108 of 1996),
the legislature has subsequently indicated that it must simply be cited as follows: Constitution of the
Republic of South Africa, 1996. When referring to a section of the Constitution, or any other act,
you can (depending on the prescribed reference style of different universities and publishers) use the
abbreviation ‘s’ or ‘ss’ for plural. Thus, when you are referring to the equality clause, for instance,
you could refer to s 9. Subsections of any particular constitutional or legislative provision are placed
in parentheses after the main section number. Thus, s 9(3) indicates the various grounds of unfair
discrimination which potentially violate the right to equality.
Skills exercise 5.4
Read sections 1(c), 2, 8(1), 167(3)–(5), 167(7) and 172 of the Constitution and then write a one-page essay outlining the
concept of the supremacy of the Constitution. Your essay must correctly reference the relevant constitutional provisions.
Skills exercise 5.5
Write a five-page essay in which you discuss the role of the Public Protector as a state institution supporting
constitutional democracy with reference to all the relevant constitutional provisions. Evaluate whether the current
incumbent of this position is living up to constitutional expectations. (See, in particular, the website www.pprotect.org.)
5.3.2 Legislation
Legislation comprises written legal rules made or promulgated by the recognised legislative
authority in the state. Legislation is also known by the terms ‘statutes’ or ‘acts’. A statute can
regulate virtually any aspect of human activity that the legislative authority deems necessary to be
regulated or wants to regulate as long as it falls within its law-making domain as established by the
Constitution.
REFRAMING
Legislation regulates almost every aspect of our lives and different statutes are constantly being developed and/or
amended. Visit the website of the parliament of South Africa at http://www.parliament.gov.za/live/index.php and follow
the link to ‘Legislation’ under the heading ‘Business of Parliament’. What bills are currently under discussion by
parliament? Are you aware of the legislative changes these bills are proposing?
Skills exercise 5.6
Refer to the research guidelines outlined in chapter 12. Then access either the Juta or the LexisNexis legal databases
and by means of a simple search identify at least 10 subject matters or issues over which any of the spheres of
government have legislative authority.
As you would already have realised from the previous section, statutes are made at three levels in
South Africa – at national level by parliament (national legislation and regulations), at provincial
level by the provincial legislatures (provincial statutes) and at the local level by municipal councils
(local by-laws).
5.3.2.1 National legislation and regulations
As a student and during your career as a lawyer, you will often deal with legislation as a source of
law. It is therefore also important for you to know the different components of a statute. For present
purposes, consider the following extract from the National Sport and Recreation Act5 where we
indicate the different components of the Act in grey font.
NATIONAL SPORT AND RECREATION ACT 110 OF 1998
[Short title which indicates its name, number and year.]
[ASSENTED TO 24 NOVEMBER 1998]
[DATE OF COMMENCEMENT: 10 SEPTEMBER 1999]
[Date assented to and date of commencement.]
(English text signed by the President)
[Indicates which version of the Act has been signed by the president of South Africa. The president signs only one version
in one of the official languages – this is mostly the English version.]
as amended by
National Sport and Recreation Amendment Act 18 of 2007
[Indicates this Act has been amended by a subsequent Act.]
ACT
To provide for the promotion and development of sport and recreation and the co-ordination of the relationships between
Sport and Recreation South Africa and the Sports Confederation, national federations and other agencies; to provide for
measures aimed at correcting imbalances in sport and recreation; to provide for dispute resolution mechanisms in sport
and recreation; to empower the Minister to make regulations; and to provide for matters connected therewith.
[Long title of the Act which states the purpose of the Act.]
[Long title substituted by s. 17 of Act 18 of 2007.]
[Indicates that this particular part of the original Act has been amended and, in this case, substituted by the Amendment Act. The
amendments are indicated by square brackets.]
1 Definitions
[This section sets out and defines all words, names and phrases that may give rise to ambiguity in the Act. It is also
referred to as the definition section.]
In this Act, unless the context otherwise indicates–
‘General Assembly’ ……
[Definition of ‘General Assembly’ deleted by s. 1 (a) of Act 18 of 2007.]
‘high performance sport’ means the high level participation in major international sporting events including but not
limited to world championships and other international multi-sport events such as the Olympic Games, Commonwealth
Games, Paralympic Games and All Africa Games;
[Definition of ‘high performance sport’ inserted by s. 1 (b) of Act 18 of 2007.]
‘Minister’ means the Minister responsible for Sport and Recreation in South Africa;
[Definition of ‘Minister’ substituted by s. 1 (c) of Act 18 of 2007.]
‘NAPCOSA’ ……
[Definition of ‘NAPCOSA’ deleted by s. 1 (d) of Act 18 of 2007.]
‘National Coaching and Accreditation Institute’ means the institute referred to in section 7 (1) (f);
‘national federation’ means a national governing body of a code of sport or recreational activity in the Republic
recognised by the relevant international controlling body as the only authority for the administration and control of the
relative code of sport or recreational activity in the Republic;
[Definition of ‘national federation’ substituted by s. 1 (e) of Act 18 of 2007.]
‘NOCSA’ ……
[Definition of ‘NOCSA’ deleted by s. 1 (f) of Act 18 of 2007.]
‘prescribe’ means prescribe by regulation;
‘provincial department of sport and recreation’ ……
[Definition of ‘provincial department of sport and recreation’ deleted by s. 1 (g) of Act 18 of 2007.]
[…]
2 Promotion and development of sport and recreation in Republic
[This is section 2 of the Act.]
(1) The Minister must recognise in writing a Sports Confederation which will be the national co-ordinating macro body
for the promotion and development of high performance sport in the Republic.
[This is subsection 1 of section 2. It is written in the following form: 2(1).]
[Sub-s. (1) substituted by s. 2 (a) of Act 18 of 2007.]
(2) The Sports Confederation may, from time to time, develop guidelines for the promotion and development of high
performance sport.
[Sub-s. (2) substituted by s. 2 (b) of Act 18 of 2007.]
(3) (a) Every government ministry, department, province or local authority may carry out sporting or recreational
activities or activities relating to physical education, sport and recreation, including training programmes and
development of leadership qualities.
[This is paragraph a of subsection 3. It is written in the following form: 2(3)(a). Paragraphs can also include
subparagraphs that are indicated by Roman numerals, for example i, ii or iii. It would be written in the following
form: 2(3)(a)(i).]
(b) In relation to high performance sport, a government ministry, department, province or local authority referred
to in paragraph (a) may consult with the Sports Confederation.
[Para. (b) substituted by s. 2 (c) of Act 18 of 2007.]
(4) The Sports Confederation must co-ordinate all activities relating to high performance sport including team
preparations and must consult with all the relevant sport bodies in that regard.
[Sub-s. (4) substituted by s. 2 (d) of Act 18 of 2007.]
(5) All national federations must develop its sports or recreational activity at club level in accordance with–
(a) the service level agreement referred to in section 3A;
(b) the development programmes referred to in section 10 (3); and
(c) the guidelines issued by the Minister in terms of section 13A,
and submit the progress on such development to Sport and Recreation South Africa and Parliament on an
annual basis.
[Sub-s. (5) added by s. 2 (e) of Act 18 of 2007.]
(6) The Minister must advise the Minister of Finance if a national federation fails to develop its sports or recreational
activity as contemplated in subsection (5), to be dealt with in accordance with an Act of Parliament administered by
that Minister.
[Sub-s. (6) added by s. 2 (e) of Act 18 of 2007.]
3……
[S. 3 deleted by s. 3 of Act 18 of 2007.]
3A Service level agreement
The Sports Confederation and national federations must, in the prescribed manner, enter into a service level agreement
with Sport and Recreation South Africa in respect of any function assigned to them by this Act.
[S. 3A inserted by s. 4 of Act 18 of 2007.]
4 Determination of sport and recreation policy
(1)The Minister may, after consultation with or after consideration of proposals made by the Sports Confederation in so
far as high performance sport is concerned, from time to time, determine the general policy to be pursued with regard to
sport and recreation.
[Sub-s. (1) substituted by s. 5 (a) of Act 18 of 2007.]
(2) The policy determined by the Minister may, among others, relate to the following:
(a) Confirming the roles and responsibilities amongst the various role-players in sport and recreation to ensure
that all efforts are co-ordinated in an efficient manner;
(b) providing funds annually for the creation and upgrading of basic multipurpose sport and recreation facilities
subject to the provisions of section 10 and according to priorities as determined, from time to time, by Sport
and Recreation South Africa in consultation with provincial and local government and relevant sport or
recreation bodies;
[Para. (b) substituted by s. 5 (b) of Act 18 of 2007.]
(c) maintaining the focus on the administration of sport and recreation, as well as the development of a volunteer
corps, to assist in the implementation of the various mass participation programmes;
(d) enhancing health consciousness by means of themed programmes aimed at specific interest groups in the
society;
(e) identifying latent talent for sport;
(f) investing in the preparation of sport participants who are elected to represent the Republic in major
competitions;
(g) helping in cementing the sports unification process; and
(h) instituting necessary affirmative action controls which will ensure that national teams reflect all parties
involved in the process.
(3) The policy as determined by the Minister binds all sport or recreation bodies.
[Sub-s. (3) substituted by s. 5 (c) of Act 18 of 2007.]
5 ……
[S. 5 deleted by s. 6 of Act 18 of 2007.]
[…]
12 Environment and sport and recreation
(1) All sport and recreation activities must be conducted in such a way that the environment is not adversely affected.
(2) The governing body of any sport or recreation body must lay down guidelines which are aimed at the protection of
the environment.
[…]
14 Regulations
The Minister may, after consultation with the Sports Confederation in so far as high performance sport is concerned,
make regulations–
(a) as to any matter which by this Act is required or permitted to be prescribed;
(b) as to the implementation of various programmes for sport and recreation;
(c) as to the training of sport and recreation leaders;
(d) relating to mass participation in sport and recreation;
(e) providing for resources for sport and recreation;
(f) providing for a sport support services;
(g) providing for recreation support services;
(h) as to the programmes to promote engagement in sport and recreation;
(i) as to the funding of sport and recreation;
( j) relating to the incentives for high performance sport achievers and recreation practitioners;
( jA) for kickboxing, boxing, karate, wrestling, taekwando, judo and any other form of combat sport;
( jB) to minimize the chances of injury in any sport or recreational activity other than boxing, kickboxing, karate,
wrestling, taekwando, judo and any other form of combat sport;
( j C) as to hosting of and bidding for major international sports events;
( j D) as to the awarding of national colours;
( j E) as to the recognition of sport or recreation bodies;
( j F) as to the control of foreign sports persons in South Africa;
( j G) as to the fitness industry;
(j H) as to dangerous sports and recreational activities;
(jI) as to the procedure for negotiating a service level agreement and other matters to be dealt with in such an
agreement; and
(k) generally, as to any other matter in respect of which the Minister may deem it necessary or expedient to make
regulations in order to achieve the objects of this Act.
[S. 14 substituted by s. 15 of Act 18 of 2007.]
15 ……
[S. 15 deleted by s. 16 of Act 18 of 2007.]
16 Short title
[Indicates the short title again.]
This Act is called the National Sport and Recreation Act, 1998, and comes into operation on a date fixed by the President
by proclamation in the Gazette.
You would cite this Act as follows: National Sport and Recreation Act 110 of 1998. This citation
provides valuable information, including:
• the short title of the Act: National Sport and Recreation Act
• the chronological number of the Act: 110 (Each year parliament adopts many acts. This is Act
number 110 of that year.)
• the year the Act was assented to: 1998. (Note that sometimes the year an act was assented to
and the year of commencement of the act differ. In this case, the Act was assented to in 1998, but
only commenced in 1999.)
Skills exercise 5.7
Find the State Attorney Act 6 using the research skills discussed in chapter 12. Write a two-page essay on the office of
the state attorney correctly citing the provisions of this Act.
primary legislation: legislation passed by parliament
secondary legislation: legislation, such as regulations, formulated by a minister or officials in a department
ultra vires: to exceed powers which therefore renders it invalid
doctrine of legality: a minister or other functionary must comply with the Constitution and the enabling parent law when
making secondary legislation
National legislation includes amendments, schedules and regulations. Legislation passed by
parliament is considered
primary legislation. Many of these statutes allow a minister in charge of a certain government
department, for example the Department of Housing or the Department of Labour, to make further
rules, regulations or orders for the effective operation of the statute. Parliament has in such cases
effectively delegated some of its law-making powers to a minister or officials in a department who
formulate secondary legislation, also called delegated or subordinate legislation, under a parent
statute or law. An example of secondary legislation is regulations.
The concept of ultra vires applies to the making of secondary legislation. Regulations, for
example, will be ultra vires when a minister or other functionary exceeds his or her statutory power.
The doctrine of legality applies to the execution of public functions such as the making of
secondary legislation as has been confirmed by the courts in, among others, Minister of
Correctional Services v Kwakwa.7 The doctrine of legality means that a minister or other
functionary must comply with the Constitution as well as act within the parameters of the power
conferred on him or her by the enabling parent law when making secondary legislation.
Skills exercise 5.8
Find the Mineral and Petroleum Resources Development Act and read sections 10, 16(4) and 22(4). Then find the
regulations issued in terms of this Act and read regulation 3. Explain how the primary Act and the regulations work
together to regulate consultation with interested and affected parties.
As noted above, Schedules 4 and 5 of the Constitution regulate the division of legislative authority.
For example, Schedule 4A determines that casinos, education and public transport are matters on
which the national and provincial authorities have the authority to legislate, while Schedule 4B sets
out the functional areas on which local authorities may pass by-laws and on which the national and
provincial spheres may pass legislation that provides for the monitoring and support of local
government. These matters include firefighting services, water and sanitation services, as well as
child-care facilities, among others.
The way in which legislative authority is allocated in South Africa means that more than one
sphere of government is often responsible for regulating a single area of life. For example, the
national and provincial legislative authorities are responsible for legislating on disaster management
while local government can legislate on firefighting services. Firefighting services form part of the
broader field of disaster management. This is therefore an example of an instance where all three
spheres of government have legislative authority with respect to a single regulated area.
THINKING LIKE A LAWYER
The Constitution creates the conditions for the possibility of two or more statutes to regulate the same area of social
life. So, for instance, in the concurrent functional areas set out in Schedule 4, you could encounter both national and
provincial legislation on the same topic and this might cause conflict between the two statutes. This is not a problem
that is confined to legislation, however. Legislation and the common law, for instance, could contain conflicting rules
on the same area of social life. In these circumstances, lawyers look for a third source of rules that will resolve the
conflict. These conflict-resolving rules indicate which set of rules must be followed or, more commonly, they define the
circumstances in which one set of rules will prevail over another.
As far as national and provincial legislation dealing with a Schedule 4 functional area are concerned, these rules
are set out in section 146 of the Constitution. Section 146 of the Constitution determines that national legislation that
applies uniformly with regard to South Africa as a whole, as a general rule, prevails over provincial legislation. Section
156(3) further provides that a local by-law that conflicts with national or provincial legislation is invalid. Despite this
hierarchy, all laws made by any of the legislatures must always be in accordance with the Constitution.
Skills exercise 5.9
Find the case of City of Cape Town v Maccsand (Pty) Ltd 2010 (6) SA 63 (WCC), read the judgment in its entirety and
then answer the following questions:
1. With which other two pieces of national legislation was the Land Use and Planning Ordinance 15 of 1985 (Western
Cape) in conflict?
2. How did the court resolve the conflict between the different pieces of legislation?
The words of a statute do not provide us with legal rules that apply unambiguously in every
situation. Where words are ambiguous, the meaning must be determined for each specific instance.
The courts are the primary interpreters of statutes and South African law provides specific rules and
guidelines with respect to such interpretation. Statutory interpretation is dealt with in greater detail
in chapters 7 and 8.
5.3.2.2 Provincial legislation
Each of the nine provinces has legislative authority which vests in the provincial legislature. This
legislative authority confers on the provincial legislature the power to pass legislation for its
province with regard to any matters within a functional area of provincial government (listed in
Schedules 4 and 5 of the Constitution). These matters include, for example, disaster management,
housing, and urban and rural development. Provincial legislation must be in line with the
Constitution and national laws to be valid.
Skills exercise 5.10
Find the Western Cape Liquor Act published in the Provincial Gazette (Western Cape) 6582 of 27 November 2008 and
then compare this provincial Act to the form of a national statute.
1. What similarities do you observe?
2. What is the chief difference?
5.3.2.3 By-laws
A by-law refers to legislation passed by the council of a municipality. A by-law is binding in the
jurisdiction of the municipality on the persons to whom it applies. The Constitution determines that
municipalities have the power to make and administer by-laws for the effective administration of the
matters which local government has the right to administer. These matters range from the control of
public nuisances and air pollution to street trading and public health services. Section 156(3) of the
Constitution further states that a by-law that conflicts with national or provincial legislation is
invalid. This means that all by-laws must be in line with the Constitution and any other national or
provincial law. The by-law making process is prescribed in sections 12 and 13 of the Local
Government: Municipal Systems Act.8
Skills exercise 5.11
Use the Internet to obtain copies of the by-laws applicable in your metropolitan area, city or town and then answer the
following questions:
1. What issues tend to be regulated by by-laws?
2. What similarities do you observe between by-laws and national/provincial legislation?
3.What is the chief difference?
5.3.3 Judicial precedent
Judicial precedent is made by the judicial authority of South Africa, also referred to as the courts or
the judiciary. Whereas the legislative authority is responsible for making legal rules in the form of
statutes, the judiciary is responsible for resolving legal disputes arising from statutes and other
sources of law, for example the common law, by hearing a matter and then delivering a judgment.
Legal disputes can, for example, arise when two opposing parties interpret a provision of a statute
differently or when they differ about the application of the law to the facts. They would then ask the
courts, as the main interpreters of the law, which interpretation is correct.
REFRAMING
Prominent court cases tend to capture the public imagination. Scan the newspapers for stories of prominent cases
before the courts and share the articles with your classmates. What can you learn about judicial precedent from these
reports?
The courts hear hundreds of other cases, however, which do not make the headlines. Visit the court closest to your
place of residence or study and record your observations.
Legal disputes also arise where one party argues that its rights have been negatively affected by
another party. It is the duty of the courts to establish factually whether or not this is indeed the case
and to provide a suitable remedy. The courts also assist in the balancing of legal interests where two
or more parties claim protection of their rights. A typical example is where a community argues that
it has the right of access to land and a mining company argues that it has prospecting rights on the
land. Both clearly contend that they have rights on, and claims and entitlements to, the land. If any
dispute arises because of access to this land, the parties could approach a court to decide on their
respective entitlements, rights and claims.
It should be clear that the primary task of courts in South Africa is to resolve legal conflicts and
legal questions that arise in society. However, resolving conflicts and questions by applying and
interpreting the law does not by itself create new law. How, then, can courts be regarded as forming
part of the primary sources of law or contribute to the creation of these primary sources? The
answer lies in the rule of judicial precedent, also known as the stare decisis rule, which literally
means ‘to stand by previous decisions’.9 In terms of this rule, when a court hears a matter, it must
take into account previous judgments in similar cases which other courts have already decided in the
past. In practice, this rule, which is derived from English law, means that a court that hears a matter
in 2013 is obliged to follow the judgment that another court gave in 2008 if both cases deal with
similar facts, issues and questions of law. Previous judgments, unless they are materially wrong,
therefore create binding law because the present court is obliged in terms of the stare decisis rule to
abide by this judgment and apply it in the case serving before it. The rules of precedent are outlined
in greater detail in chapter 8. As a general rule, however, the higher courts are bound by their own
judgments and lower courts are bound by the decisions of all higher courts.
THINKING LIKE A LAWYER
Section 27(1)(b) of the Constitution determines that everyone has the right of access to sufficient water. The Water
Services Act10 states that everyone has access to 25 litres of free potable water per person per day. Three different
courts have interpreted this particular provision on three occasions. The High Court held in Mazibuko v City of
Johannesburg11 that the 25 litres of water as provided for in the Water Services Act is insufficient and should be
increased to 50 litres of free water per person per day. This amount was subsequently reconsidered and reduced to
42 litres by the Supreme Court of Appeal in City of Johannesburg v L Mazibuko.12 The Constitutional Court in
Mazibuko v The City of Johannesburg13 again reconsidered the amount of water provided for in the Water Services
Act. As the final word on this matter, the Court held that the amount provided in the Water Services Act is, in fact,
sufficient and should remain at 25 litres of free water per person per day. Because the Constitutional Court is the
highest court in constitutional matters, this means that the current legal position in South Africa is that everyone has
access to 25 litres of free water per person per day.
Judicial precedent refers to new rules of law that emerge from the judgments of the courts. This
does not happen in every single case of the many hundreds of cases that the courts hear each year.
First, the lower courts, for instance the regional and district magistrates’ courts, are not courts of
record and their decisions can therefore never constitute judicial precedent. Even in the higher
courts, such as the different High Courts, judges are also required to adjudicate on matters where
there is no legal dispute about the meaning of the law but only a dispute on the facts. In most cases,
judges simply apply the law without having to develop a new legal rule. In other words, the
application of the law to the facts is uncontroversial. These cases are not reported. An example of an
unreported case is The Trustees for the time being of the Biowatch Trust v the Registrar: Genetic
Resources.14 This, however, does not mean that the case, simply by virtue of it being unreported,
cannot set a judicial precedent. It is indeed possible that certain cases, even though they are
unreported, could be brought to a court’s attention by the parties and relied on as a judicial
precedent.
In some cases the law, for example legislation, does not fit the facts exactly. There will be
different arguments on how the law should apply. This may entail either widening or narrowing the
ambit of a legal rule by extending or failing to extend it to the context in question. In this case, a
new precedent is created, it is reported and it becomes part of case law. An example of a reported
case is Mazibuko v The City of Johannesburg.15
As mentioned above, the precedent system depends on the fact that judgments are reported in order to have them
published across the different divisions and levels of courts. A number of law reports are published for this purpose.16
The South African Law Reports and All South African Law Reports are used most frequently. Each of these use different
citation conventions. A citation is primarily an indication to readers where in the particular law reports they will find the
judgment. Every case has a unique citation to distinguish it from other cases. Below is a citation of a case that was
reported in the South African Law Reports:
Brisley v Drotsky 2002 (4) SA 1 (SCA).
The citation also provides some important information about the case:
• The surnames of the parties, Brisley v Drotsky, indicate that this was a civil matter. A criminal
matter is identified by the inclusion of the state, abbreviated as ‘S’ as one of the parties, for
instance S v Zuma 1995 (2) SA 642 (CC). In older cases, the state is cited as ‘R’. These cases
were reported when South Africa was still subject to British sovereignty. The ‘R’ is a reference to
the King (Rex) or Queen (Regina) of Britain who represents the state and in whose name criminal
matters are prosecuted.
• In the example above, the ‘2002’ indicates the year in which the case was reported.
• Because many cases are reported in a calendar year, the law reports are divided into different
volumes and published throughout the year. In our example, the ‘(4)’ indicates that the case was
reported in the fourth volume of 2002’s reports.
• The ‘SA’ indicates that the case can be found in the South African Law Reports. Other common
abbreviations include ‘All SA’ for the All South African Law Reports, BCLR for the Butterworths
Constitutional Law Reports and SACR for the South African Criminal Law Reports.
• The number ‘1’ that appears after ‘SA’ is a reference to the page number in the volume of the
report where you will find the judgment, in other words, the page on which it commences. The
Brisley case thus appears in volume 4 on page 1 of the South African Law Reports for 2002.
• The abbreviation in brackets at the end is an indication of the court in which the matter was
decided, in this case the Supreme Court of Appeal (SCA). Other abbreviations for courts used to
include (C) for the seat of the High Court in Cape Town, (W) for the former Witwatersrand Local
Division which is the seat of the High Court in Johannesburg, (T) for the former Transvaal
Provincial Division which is the seat of the High Court in Pretoria and (N) for the former Durban
and Coast Local Division which is the seat of the High Court in Durban. The abbreviation for the
Constitutional Court is (CC). The names of the South African High Courts were, however,
recently changed. See Table 5.1 for the abbreviations designating the renamed High Courts.
Table 5.1 Abbreviations designating renamed courts
Name of court Abbreviation
Eastern Cape High Court, Bisho ECB
Eastern Cape High Court, Grahamstown ECG
Eastern Cape High Court, Mthatha ECM
Eastern Cape High Court, Port Elizabeth ECP
Free State High Court, Bloemfontein FB
KwaZulu-Natal High Court, Durban KZD
KwaZulu-Natal High Court, Pietermaritzburg KZP
Limpopo High Court, Thohoyandou LT
North Gauteng High Court, Pretoria GNP
North West High Court, Mafikeng NWM
Northern Cape High Court, Kimberley NCK
South Gauteng High Court, Johannesburg GSJ
Western Cape High Court, Cape Town WCC
Skills exercise 5.12
State all the information provided by the following citations:
1. A to Z Bazaars (Pty) Ltd v Minister of Agriculture 1975 (3) SA 468 (A)
2. R v Akhurst 1948 (2) SA 811 (C).
In addition to being able to cite a case correctly, it is also important to know how to read a case
efficiently and effectively. This entails making maximum use of the material added by the various
publishers to the raw material that is the judgment. These materials include the flynote, the headnote
and the annotations. The elements of a case are explained with reference to the judgment in
Edelstein v Edelstein NO and Others 1952 (3) SA 1 (A) below.
Edelstein V Edelstein NO and Others 1952 (3) SA 1 (A)
Citation 1952 (3) SA 1 (A)
Court Appellate Division [now the Supreme Court of Appeal]
Judge(s) Centlivres CJ, Van Den Heever JA, and Hoexter JA
[The abbreviations after the surnames of the judges indicate their titles:
• CJ: Chief Justice
• JA: Judge of Appeal.
Other abbreviations include:
• J: Judge
• AJ: Acting Judge
• P: President of the Supreme Court of Appeal
• DP: Deputy President
• AJA: Acting Judge of Appeal.]
Heard March 15, 1952
Judgment March 31, 1952
Flynote: Sleutelwoorde
[This sets out the keywords which are applicable to the case and which are used in
database searches.]
Minor – Antenuptial contract entered into without guardian’s assistance – Contract ipso
jure void and a nullity.
Headnote: Kopnota
[This is a summary of the judgment, authored by the publisher of the law reports.]
An antenuptial contract entered into by a minor without the assistance of his guardian is
ipso jure void and a nullity. The decision in the Transvaal Provincial Division in Edelstein
v. E Edelstein, N.O. and Others, reversed.
[After the headnote, it is customary to find annotations which list the statutes and reported
cases listed in the judgment and, in the case of cases, whether these were applied,
referred to, considered, distinguished, compared or overruled.]
Appeal from the decision in the Transvaal Provincial Division (DE VILLIERS, J.). The
facts appear from the judgment of Van Den Heever, J.A.
[This line indicates the nature of the action that was heard.]
[At this point the advocates who acted for the parties are usually listed.]
Cur.adv.vult.
[The court adjourned for judgment.]
Postea (March 31st).
[Judgment was given on the specified date.]
VAN DEN HEEVER JA: [A judgment typically opens with a statement of the facts and
background to the case.] This is an appeal brought by consent of parties direct to this
Court from a decision of De Villiers J in the Transvaal Provincial Division dismissing an
application of the present appellant and ordering her to pay the costs of the eighth
respondent the Commissioner for Inland Revenue.
Appellant’s parents, Simon Daniel and Ida Daniel, were divorced from each other when appellant was about six
years of age and the custody of the minor children of that marriage was awarded to the mother. During 1918, when
not quite 20 years of age, appellant was married at Krugersdorp, Transvaal, to Louis Edelstein with the consent of
her mother and the constructive consent of her father; he was informed of the proposed marriage and did not object.
It was not disputed that the marriage was valid or that the Transvaal was the matrimonial domicile of the spouses.
The parties to the proposed marriage purported to execute an antenuptial contract which recites that before the
notary public there appeared to that end ‘Louis Edelstein, a bachelor of full and competent age, of Johannesburg,
and Frieda Daniel, a minor, of Krugersdorp, duly assisted herein by her mother and natural guardian, Ida Daniel
(born Judelson), divorcee, who was formerly married to Simon Daniel, and having the custody of all the minor
children of the marriage between herself and the said Simon Daniel.’
The natural conclusion to draw from this recital is that when the antenuptial contract was executed appellant’s
father was still alive and did not assist her in its execution; that all persons concerned in its execution were under the
impression that, since the custody of the minor children had been awarded to the mother, only the mother’s consent
and assistance were required to enable the minor to enter into a valid antenuptial contract. Moreover it is common
cause that the father was in fact alive at the time and took no part in the execution of the antenuptial contract.
At the time of her marriage appellant had no assets at all. The evidence as to her husband’s financial position at
the time is not clear, as may be expected after this lapse of time, but as far as we can gather he possessed a
second-hand motor-car, a motor-cycle and some capital and a share in a bag and bottle business. Apparently the
business was of modest dimensions, but there is uncontradicted evidence that during the year in which he was
married his income for income tax purposes was assessed at some £2,000. During the subsistence of the marriage,
however, he amassed a considerable fortune amounting to over £100,000. He died on the 2nd of October, 1947,
leaving a will to which I refer later.
I turn now to the terms of [the] antenuptial contract: community of property was excluded […]
In August, 1947, the deceased [Louis Edelstein] made a will in which he disposed of his estate. In it he made a
number of bequests to individuals and charitable institutions; for the purpose of this judgment it is unnecessary to
recount these dispositions but sufficient to state that appellant was a beneficiary under the will in which he
bequeathed to her the dwelling house occupied by the spouses at his death and the sum of £150 per month during
the whole of her natural life.
The executors in the estate of the late Louis Edelstein framed a liquidation and distribution account on the basis
that the marriage had been out of community and appellant, in the bona fide belief that she had been so married,
accepted the benefits under the will. In August, 1949, when appellant consulted her legal advisers in regard to the
drafting and execution of her own will, the antenuptial contract was produced and its validity for the first time
questioned. [This is where the court first explicitly states the legal issue and then proceeds to discuss the decision of
the court below (also referred to as the court of first instance or the court a quo.] Thereupon appellant brought a
petition in the Transvaal Provincial Division in which, while tendering to account to the executors for all assets in her
possession on the date of the death of her late husband and to account to them for such benefits as she may in law
be liable to account, she prayed for an order:
(a) declaring that she was married to the late Louis Edelstein on the 14th April, 1918, at
Krugersdorp, Transvaal, in community of property, and
(b) directing the executors to amend the liquidation and distribution account by awarding
her one half of the net value of the estate by virtue of her marriage in community of
property to the said Louis Edelstein.
Before De Villiers, J., it was contended that the application must fail on the grounds that:-
1. The antenuptial contract was to the appellant’s benefit and is therefore binding upon
her in the same manner as all similar contracts entered into by minors.
2. When applicant reached the age of twenty-one she confirmed and ratified the
antenuptial contract.
3. By her conduct in accepting benefits under the will after she knew the legal position
or was put on inquiry, she made her election and has confirmed and ratified the
antenuptial contract, on the strength of which the will rests.
viva voce evidence: evidence given by a witness orally as opposed to evidence given in a written affidavit; viva voce
literally means ‘with living voice’
ratio decidendi: reason for the decision
By consent of parties viva voce evidence was received in support of the affidavits filed and the learned Judge who
heard the matter, while deciding that the appellant was not precluded from seeking the relief sought by reason of her
conduct after the death of her husband, dismissed the application […] It is difficult to gather the crisp ratio
decidendi, but I think it may fairly be stated to have been the following: contracts entered into by minors without the
assistance of their guardians are invalid except in so far as the minors have benefited thereby; ‘in the present case
Edelstein settled on the applicant about £1,550, plus the then value of the endowment policy. At the time of the
marriage the applicant possessed nothing. The antenuptial contract conferred substantial benefits on her, while it
imposed no burdens or obligations’. ‘Where a minor makes a good bargain he will be bound by his contract. I do not
think the position would be different even if it can be shown that the minor could have made an even better bargain.’
‘The fact that the applicant was never paid the £1,000 in cash is due to her own fault in not demanding it or
Edelstein’s lack of money. The furniture she received was sold and other articles bought. At the date of Edelstein’s
death the furniture and effects were worth £1,300. I hold, therefore, that the applicant is not entitled to the orders
prayed for.’ The passages in quotation marks are excerpts from the judgment.
[Below, the court moves on to its own discussion of the applicable law.]
sine diminutione patriae potestatis: without diminishing parental authority
Where, as in this case, a husband is domiciled in South Africa at the time of the marriage the presumption is that the
marriage is in universal community of property and ‘the onus of proving any derogation from the normal incidents of
the law of their initial domicile will rest upon the person averring it’ (Voet, 23.2.91). Universal community is the
normal matrimonial proprietary regime and where there has been derogation from it, the presumption is in favour of
the lesser deviation from the normal (Coren, Observ. 38.66, 67; Someren, De Jur. Novercal. Cap. 12.3; Wesel, De B
Connub. Bonor. Societ. Tr. 2 cap. 2. 223; Noestad., Observ. 23). It was assumed in the Court a quo and before us
that where upon divorce the custody of a minor child is awarded to the mother, the father remains the child’s natural
guardian for the purpose of assisting it in the performance of juristic acts and that the mother alone is incapable of
doing so. That assumption was, I think, correct. An order awarding the custody of a minor to the mother merely
suspends in the interests of the minor certain of the incidents of parental authority and does so for the rest sine
diminutione patriae potestatis (Landmann v Mienie, 1944 D O.P.D. 59; D. 43.30.3.5).
Respondent cannot rely upon the antenuptial contract itself to rebut the presumption that the marriage was in
community since it is on the face of it invalid for lack of capacity of the contracting party against whom it is sought to
be used. The only three Roman Dutch authorities who to my knowledge deal directly with this subject are Lybrechts
(Redeneerend Vertoog, 1.7.5), Arntzenius (Instit. Jur. Belg., 2.5.15 and 2.5.90 (8)), and van der Keessel (Dictata ad
Grot. 2.12.3). All three maintain that [an ante-nuptial contract entered into by a minor without the assistance of his
guardian is ipso iure void and a nullity…] [This is the ratio decidendi of the decision. This is the part where the court
provides the reasons for its decision.]
Practically all our authorities […] state that, save for certain exceptions and then only to a certain extent, a contract
entered into by a minor without the assistance of his guardian is not binding upon the minor […] In Roman Dutch law
the judgment of a minor is considered immature throughout his minority and he is consequently not bound by his
contracts.
[The court now applies the law to the facts and make an order.] It follows that in this case the antenuptial contract
could not per se exclude community of property. Mr. Retief contended, however, that the appellant was bound by the
antenuptial contract because it was for her benefit. If the contention is sound, every antenuptial contract to which an
unassisted minor is a party and in which a few shillings are settled upon the minor would be binding. It is
unnecessary, however, to examine the alleged benefits, since the proposition is based upon a misunderstanding of
the authorities.
In the earliest cases in the Cape and one decision in the Transvaal the undoubtedly correct rule of our law was
applied, namely that the contract of a minor is invalid unless he is assisted by his guardian (Gantz v Wagenaar, 1
Menz. 92; Riggs v Calff, 3 Menz. 76; Groenewald v Rex, 1907 T.S. 47). I have difficulty in applying the alleged rule to
the antenuptial contract in this case. The normal matrimonial proprietary regime in this country is community of
property. The deceased could not successfully have conducted his bag and bottle business if his wife had not
cooked the dinner and minded the children. Most couples are relatively poor when they marry and amass some
substance during the marriage. In consideration of promises to give her a few hundred pounds the bride agreed to
become a housewife and to waive her rights to the yield of the joint efforts of both spouses for the whole of her
married life. Promises cannot enrich; only fulfilled promises can do so. But how is one to measure whether in these
circumstances the contract was in some general and nebulous sense for the benefit of the minor?
This is the case particularly in antenuptial contracts. Endowments made in antenuptial contracts are not in Roman
Dutch law regarded as pure gifts without reciprocal obligations. Whatever a spouse acquires under this head, is
acquired by onerous, not lucrative title, for it is given in consideration of the marriage and its burdens. That is so
especially in the case of a wife who renders her position less favourable than that of a single woman (Arntzen.
2.5.53; van der Berg, Nederl. Advys b.2 Cons. 22).
The object of the law in regarding the contracts of minors as unenforceable is to protect them against their own
immaturity of judgment. This object would be frustrated if a minor were bound by his contract whenever the other
contracting party has been astute enough to promise or grant the minor some small immediate advantage.
Then Mr. Retief contended that, when appellant attained her majority and retained the assets given her pursuant
to the antenuptial contract, she ratified it. This is a startling proposition. Our law is clear: once a particular proprietary
matrimonial regime is established at the marriage it may not […] be altered except by an order of court in certain
circumstances (van der Linden, Koopmans Handboek 1.3.5. H and 8; Arntzenius, Instit. Jur. Belg. 2.4.10; Schorer ad
Grot. 2.12.5; Union Government (Minister of Finance) v Larkan, 1916 AD 212). In my judgment, therefore, the appeal
is allowed with costs against the eighth respondent: the order made in the Provincial Division is set aside and the
following order substituted: ‘It is declared that the marriage between petitioner and the late Louis Edelstein was a
marriage in community of property and remained such until the time of its dissolution; eighth respondent to pay the
costs occasioned by his opposition’.
CENTLIVRES, C.J., and HOEXTER, J.A., concurred. [This is an indication of the other judges who constituted the
Court in this case and who agreed with the decision of Van den Heever, JA. If they did not agree, or if they agreed
but for different reasons, they would pen a separate minority judgment. There can be as many judgments as there
are judges in a case. See also chapter 8.]
A court’s decision normally adheres to the structure illustrated in the Edelstein decision, namely:
• statement of facts
• legal question
• statement of applicable law
• application of law to the facts
• conclusion/order.
In most cases, however, there is usually more than one legal question. The court outlines the legal
questions and the law applicable to each of them before moving to a comprehensive application of
the law to the facts. Alternatively, a court may tackle each legal question on its own by outlining the
applicable law and the application of the facts for one question before moving onto the next.
At this stage of your legal academic training, it is essential that you practise writing case
summaries. A case summary conventionally follows the structure outlined above, in other words,
facts, legal question(s), applicable law, application of law to facts and conclusion. Your facts should
strike a good balance between stating too much information and not providing enough detail for the
reader to understand the legal questions. They should include information about the nature of the
case, for example an appeal, particular types of application or a review, and what the parties desired
from the court. Your statement of the legal questions must be concise and comprehensive. The
overview of the applicable law should look to the main legal authorities, or sources of law, the court
used to reach its decision. This could include applicable statutory provisions or judicial precedent
that the court applied. The application of the law to the facts and the conclusion outline the
implications of the relevant law for each party given the facts of the case.
Skills exercise 5.13
Using the structure suggested above, prepare a case summary of the following case: African National Congress v The
Municipal Manager, George Local Municipality [2010] 3 BLLR 221 (SCA).
You will also find case summaries in the casenotes prepared by legal academics and legal
practitioners and published in law journals. A casenote typically includes a brief commentary on or
evaluation of a case.
Skills exercise 5.14
Read the casenote in the following article: Smit, N. 2011. Resignation – An act that is not as straightforward as it seems.
Tydskrif vir die Suid-Afrikaanse Reg, 100. What did the casenote add to your understanding of the case summarised in
Skills exercise 5.13?
5.3.4 International, foreign and regional law
International law refers to the body of law created not in one country, but by many countries
collectively at an international level to regulate supranational or international matters which do not
solely fall under the domestic jurisdiction of a single state. Bodies such as the UN or the AU
provide platforms for states to interact with one another and to make legal rules which set out the
rights and duties applicable to the relationship between different states on various issues. These
issues include, for example, the environment, humanitarian aid, public health, nuclear warfare, the
ocean commons and trade.
treaty or convention: a formally concluded and ratified agreement between states
International law differs from national or domestic law in the sense that domestic laws are made
by one country and apply only in the territory of that country to matters occurring in that country.
International law applies internationally, but has a real, tangible effect on the domestic legal systems
of countries. This is especially so in those instances where it imposes obligations on countries to
reform their legal systems to comply with international law, and where it creates obligations for
states. The UN is an international institution sitting in New York. It is the main institution
responsible for creating international law rules and norms, usually through treaties or conventions.
Skills exercise 5.15
Find the full text of the United Nations Framework Convention on Climate Change (UNFCCC) online and then answer the
following questions:
1. Explain whether the UNFCCC aims to address a matter of global concern.
2. What is the aim of the UNFCCC?
3. What are the features of the UNFCCC as a treaty between states?
Once a country signs a treaty, it is bound by the provisions of that treaty. This is not unlike the
instance where a person signs a contract and is bound by its provisions, a principle known as pacta
sunt servanda.
International customary law is another important source of international law. It comprises those
unwritten customs which states support and abide by and consider to be law. The prohibition on
committing crimes against humanity is an example of customary international law. In the case of
customary international law, countries need not draft a document such as a treaty and sign it for
international customary law to become law – something becomes an international customary legal
rule because it is settled practice among the countries of the world and is accepted as having the
binding force of law.
It is not only the UN which has the authority to make law at an international level. There are also
a number of regional organisations such as the AU, the SADC and the European Union (EU) which
play an important role in developing regional laws. These regional organisations represent the
member states of a specific region and have law-making powers. The AU has, for example, created
the African Charter on Human and People’s Rights that binds those African countries which have
signed and ratified it. There are also various examples of protocols that SADC has created. These
protocols will similarly bind the countries that have signed and ratified them.
Skills exercise 5.16
Find the official website of SADC, briefly browse through some of the information contained on the site and then answer
the following questions:
1. Determine the member states of the Community.
2. On which aspects of economic and social activity has SADC passed protocols?
The reason international law constitutes a source of law in South Africa lies in sections 231 to 233
of the Constitution. These sections provide that an international treaty becomes law in South Africa
once it has been enacted into law by means of national legislation. For international treaties to
become a source of South African law, they must therefore first be transposed into legislation. This,
however, does not apply to customary international law since this is automatically a source of South
African law in terms of the Constitution.
Courts are obliged by section 233 of the Constitution when interpreting any legislation to ‘prefer
any reasonable interpretation of the legislation that is consistent with international law over any
alternative interpretation that is inconsistent with international law’. Section 39 of the Constitution,
which is part of the Bill of Rights, further states that when a court interprets the Bill of Rights, it
must consider international law and may consider foreign law. This means that where a court has to
resolve an issue concerning human dignity (section 10 of the Constitution), for example, it is
obliged to consider international law that deals with human dignity. Where a foreign country, for
example Germany, has some legal provisions that might inform the South African courts on how to
solve the legal problem here in South Africa, then a court may use this foreign (German) law
provision to interpret the Bill of Rights; it would, however, not be obliged to do so.
International law therefore has a direct effect on South African law and specifically the sources of
South African law for at least two reasons:
• It influences the creation of legislation.
• It has the potential to influence the decisions of the courts and accordingly judicial precedent.
Skills exercise 5.17
Find the Marine Pollution (Control and Civil Liability) Act17 and then answer the following questions:
1. Which Convention is this statute based on?
2. What is the objective of the statute?
3. This statute clearly deals with issues of marine pollution. Why is marine pollution an issue of international concern?
5.3.5 Common law
As explained in chapter 4, the South African legal system is to a considerable extent based on
seventeenth- and eighteenth-century Roman-Dutch law as influenced by English law. This means
that common law is an important historical source of modern South African law. Lawyers, however,
tend to underestimate the importance of the common law, especially in the fields of contract, delict,
property and criminal law. Despite its historical status, the legislative or judicial authority can
amend the common law position on a specific matter by enacting a new statute or passing a binding
judgment which could differ quite remarkably from the common law position.
Skills exercise 5.18
Find the case of Collins v Administrator, Cape 1995 (4) SA 73 (C), prepare a case summary and then answer the
following questions:
1. In this case the Court refers to the English law (common law) provisions on non-patrimonial loss in cases of
unconsciousness and changed personality. Did the Court agree or disagree with the common law position?
2. Why did the Court agree or disagree with the common law position?
audi alteram partem: listen to the other side; the rule refers to the principle that no person should be judged without a
fair hearing where he or she is given the opportunity to respond to the charges
It is important to remember that where legislation does not regulate a specific issue or regulates it
insufficiently, it is possible to rely on the common law. The impression should not be created that
legislation and the common law are mutually exclusive. While legislation could amend or change
the common law position, numerous common law principles have over time been incorporated into
South African legislation. An example is the Promotion of Administrative Justice Act18 which
provides for common law rules such as the audi alteram partem rule.
To establish the applicable law, in some instances it could be necessary for lawyers and the courts
to consult the original common law sources. This will especially be necessary in those instances
where no legal rules, whether in case law or legislation, apply to a legal problem. The works of the
old authorities introduced in chapters 3 and 4 are binding and authoritative sources of South African
law. It is therefore possible to rely on the documented works of Hugo de Groot, Arnoldius Vinnius,
Simon van Groenewegen and Johannes Voet, among others, as authority for a present-day common
law rule. Chapter 12 contains further guidelines on how to source these old authorities.
The courts may also further develop common law sources. In terms of sections 8 and 39 of the
Constitution, there is an obligation on South African courts to develop the common law in light of
the provisions of the Constitution, specifically the Bill of Rights. The development of the common
law may be necessitated by changing social conditions, values and contemporary legal needs of
society.
Skills exercise 5.19
Find the case of Carmichele v The Minister of Safety and Security and the Minister of Justice and Constitutional
Development 2001 (4) SA 938 (CC) and prepare a case summary.
1. What rule of common law was developed in this case?
2. How was the common law rule developed and what was the rationale for doing so?
5.3.6 Custom
Over a long period of time, a specific act or form of behaviour in a society could develop into a rule
of custom. This means that if a society embarks on the use of a specific custom for a long time with
such frequency and approval that the people in the community regard it as having the status of a
law, then that custom could become a law.
A custom, however, does not automatically receive the status of a legal rule. Those who want the
custom to be made a legal rule must assert it and then it must fulfil various requirements before it
can be declared a customary rule by a court of law. These requirements were laid down in the well-
known case of Van Breda v Jacobs.19 In terms of this decision, for a custom to qualify as law, it
must have been in existence for a long time, been observed generally by the community, be
reasonable, and its content and meaning must be certain and clear. Parties who seek to argue that a
custom has the status of a legal rule must prove all these elements in a court.
5.3.7 Indigenous law
As noted in chapter 4, it would be incorrect to think that the law arrived in South Africa with the
first European settlers in the 1600s. Long before the Dutch and British brought their legal systems to
South Africa, many indigenous African people inhabited the country and lived according to their
own indigenous legal systems. While many of these indigenous law rules have, intentionally and
unintentionally, fallen into disuse over the centuries, people still faithfully observe, enforce and
comply with some of these indigenous rules. Indigenous law is a form of unwritten customary law,
which means that it has become law through customary use, and you will not find it in a statute.
REFRAMING
Indigenous law is a living law that is still applied in many communities. Identify the different types of indigenous laws
that may still be applied in your community and discuss them in class.
Skills exercise 5.20
Carefully read the following extract from Coertze’s Bafokeng Family Law and Laws of Succession:20
mogaga: a herb
(M)en are legally obliged to participate in the annual sprinkling of mogaga to ensure the timely arrival of rain. Every
year the chief, through the dikgosana of the various wards, orders the head of each household to prepare a mixture
of water and mogaga. This must be sprinkled on the paths and in the veld surrounding each house, to ensure that
rain will fall in time for the ploughing season. This order is issued every year, and is applicable from September to
November. Failure to comply is punishable in the kgosanas court and is subject to a fine.
1. Bearing in mind the nature of indigenous law, what would be the best way to establish whether or not this rule still
applies among the Bafokeng people?
2. Who seems to be the law-maker in the case of this indigenous rule?
The Law of Evidence Amendment Act21 stipulates that parties may choose to rely on indigenous
law before a court of law if they so choose. If this is the case, the court can take judicial notice of
these legal rules. There is a clear advantage in this for parties who seek to rely on indigenous law
because they do not have to prove that an indigenous law rule is custom as is the case with
customary law discussed above. As is the case with the common law, courts are under the obligation
to develop indigenous law in accordance with the constitutional standard. This also means that no
rule or principle in indigenous law may contradict any of the provisions contained in the
Constitution.
5.3.8 Modern-day commentary on the law
status quo: the existing state of affairs
Like their Dutch counterparts in the seventeenth and eighteenth centuries, present-day authors,
especially law academics at universities, also write commentaries on South African law. A
significant part of a law academic’s duties is to conduct legal research and to solve legal problems
from a theoretical viewpoint. This research virtually always requires the legal scholar to investigate
a legal situation in depth and then to provide critical comments on the legal status quo, be it a
statute, a court judgment or commentary that another academic has published. The purpose of this
research is usually to make critical proposals with a view to improving the law. You only need to
visit your local law library and do a search to realise that modern-day commentary on the law is a
substantial enterprise, with many law academics, possibly even your own lecturers, having
published extensively in books and law journals.
The commentary of these modern-day legal scholars is a recognised secondary source of South
African law but differs from all the sources we have discussed above – the commentary is not
authoritative and binding, only persuasive. An advocate can accordingly not rely in court on the
published comments of a professor in human rights law as definitive and binding authority. He or
she might, however, want to use the arguments of the learned professor in support of his or her own
views and to persuade the court to follow this interpretation of the law. In some instances, the courts
themselves also rely on these secondary sources to inform and support their decisions.
Skills exercise 5.21
Find a copy of the following scholarly article: Van Reenen, T.P. 1997. Equality, discrimination and affirmative action: An
analysis of section 9 of the Constitution of the Republic of South Africa. SA Public Law, 12(1):151–165.
1. Carefully read the article and write down its theme and focus.
2. What is the key question that the author wants to address?
3. Make a list of all the primary sources of law that the author references.
4. Make a list of all the secondary sources of law that the author references.
5. Explain why the article itself can be regarded as a secondary source of legal information as opposed to a primary
source.
6. The article deals in part with section 9 of the Constitution. Can section 9 be regarded as a primary source of law?
Substantiate your answer.
7. What do you think is the added value of secondary sources of law as opposed to only having primary sources of law?
THIS CHAPTER IN ESSENCE
1. The law comprises authoritative rules that society has formulated to regulate the
relationships between people and between people and things.
2. The sources of law provide an authoritative point of origin for law. The sources indicate
which institutions may develop the law, how rules must be made or changed, and
provide safeguards relating to the substantive content of the law. They provide legal
certainty which is at the heart of the rule of law.
3. Primary sources refer to law generated by institutions vested with law-making
authority, for example parliament and the provincial legislatures, or to judgments of the
courts. Secondary sources of law provide further information on primary sources of
law. They are not binding, but serve as supplementary authority only.
4. South Africa has an uncodified legal system because it originates from a wide range of
sources of law.
5. Sources of South African law include the Constitution, statutes, judicial precedent,
customary law, common law (Roman-Dutch and English law), indigenous law,
international and foreign law, and modern-day commentaries.
6. The Constitution serves as the standard against which all other laws, as well as
conduct arising from such laws, is evaluated. If any law or conduct does not meet this
standard, it is considered unconstitutional and therefore invalid. The Constitution is
also a direct source of law because it is the source of constitutional values,
fundamental rights, as well as the organisation, operation and powers of government.
7. Legislation comprises written legal rules made or promulgated by the recognised
legislative authority in the state. Statutes are made at three levels in South Africa – at
national level by parliament (national legislation and regulations), at provincial level by
the provincial legislatures (provincial statutes) and at the local level by municipal
councils (local by-laws).
8. The judiciary contributes to the creation of primary sources of law by operation of
judicial precedent or the stare decisis rule.
9. International law refers to the body of law created by many countries collectively at an
international level to regulate supranational or international matters which do not solely
fall under the domestic jurisdiction of a single state. International customary law
comprises those unwritten customs which states support and abide by and consider to
be law.
10. Common law is an important historical source of modern South African law, especially
in the fields of contract, delict, property and criminal law.
11. For a custom to qualify as law, it must have been in existence for a long time, been
observed generally by the community, be reasonable, and its content and meaning
must be certain and clear.
12. Indigenous law is a form of unwritten customary law that is still applied in many
communities.
13. The commentary of modern-day legal scholars is a recognised secondary source of
South African law, but is not authoritative and binding, only persuasive.
Notes
1 Fuller, L.L. 1968. Anatomy of the Law, p. 3.
2 Watson, A. 1968. Sources of Law, Legal Change, and Ambiguity, p. xi.
3 Garner, B.A. (Ed.). 2004. Black’s Law Dictionary 8th ed., p. 1429.
4 Du Plessis, L. 1999. An Introduction to Law 3rd ed., p. 75.
5 110 of 1998 (the ‘National Sport and Recreation Act’).
6 56 of 1957 (the ‘State Attorney Act’).
7 2002 (4) SA 455 (SCA) at para 35.
8 32 of 2000 (the ‘Local Government: Municipal Systems Act’).
9 You have already encountered this rule in ch 4 in the context of a discussion on English law.
10 108 of 1997 (the ‘Water Services Act’).
11 [2008] JDR 0425 (W).
12 (489/08) [2009] ZASCA 20.
13 2010 (3) BCLR 239 (CC).
14 Unreported case no. A831/2005; [2007] ZAGPHC 270 (6 November 2007).
15 2010 (3) BCLR 239 (CC).
16 See also ch 12.
17 6 of 1981 (the ‘Marine Pollution Act’).
18 3 of 2000 (the ‘PAJA’).
19 1921 AD 330.
20 Coertze, R.D. 1990. Bafokeng Family Law and Laws of Succession, p. 181.
21 45 of 1988 (the ‘Law of Evidence Amendment Act’).
Chapter 6
Classification of South African law
6.1 Introduction
6.2 International law
6.3 National law
6.3.1 Public law
6.3.1.1 Constitutional law
6.3.1.2 Administrative law
6.3.1.3 Criminal law
6.3.1.3.1 Substantive criminal law
6.3.1.3.2 Adjectival criminal law: criminal procedure
6.3.2 Private law
6.3.2.1 Substantive private law
6.3.2.1.1 Law of persons
6.3.2.1.2 Family law
6.3.2.1.3 Property law
6.3.2.1.4 Law of obligations
a) Law of contract
b) Law of delict
c) Law of succession
6.3.2.1.5 Law of succession
6.3.2.1.6 Personality law
6.3.2.2 Law of civil procedure and civil evidence (adjectival private law)
6.4 Hybrid sub-disciplines
6.4.1 Environmental law
6.4.2 Commercial law
6.4.3 Educational law
6.4.4 Information technology law
6.5 Integration of disciplines
This chapter in essence
6.1 Introduction
The thousands of individual rules that derive from the sources of law discussed in chapter 5 relate to
almost every aspect of social life. There are rules relating to criminal matters such as robbery, fraud
and rape; commercial issues such as bankruptcy and insurance; constitutional issues such as voting
procedures and rights of detainees; matters arising where people conclude a contract for the sale of
property; environmental issues such as pollution of water resources, and so forth. These different
issues suggest that it is possible to distinguish certain categories or divisions of rules. This process
of distinction is called the classification of the law. This means that we break up the large body of
legal rules into smaller divisions in a logical and systematic way. Here, we usually speak of law as a
discipline and its various sub-divisions as sub-disciplines or fields of the law.
Classifying the law into sub-disciplines or fields enables lawyers and others to create a better
systematic understanding of the law and it makes the law easier to use. It also assists in making
sense of the confusing mass of legal rules. In addition, when we are seeking an answer to a complex
legal problem, the classification of the law assists in the problem-solving process. For example,
when you represent a person who is suing another because the latter failed to pay him or her in
terms of a sales contract, you will hardly consult the South African law dealing with family matters
(family law). This sub-discipline of law will tell you little about contractual agreements and the
legal remedies at your disposal in the case where one of the parties defaults on contractual
commitments (contractual law).
While the process of classification is a deliberate attempt to systematise and compartmentalise the
law, it should not be considered an attempt to segregate the various sub-disciplines. It remains only
an aid in our efforts to describe and understand the composition of the law in a logical way. This is
so because in many instances the sub-disciplines cannot be separated. Quite often, they overlap and
sometimes you will have to use the legal rules of more than one sub-discipline in your efforts to
solve a legal problem as is explained in more detail in chapter 13.
Although there may be more than one way to classify the South African legal system, the diagram
in Figure 6.1 sets out the classification that we find useful.1 The remainder of this chapter provides a
brief introduction to most of these sub-disciplines of the law.
REFRAMING
Find a detailed description of the law curriculum (subjects and their descriptions) taught in your faculty or school. Note
the subjects you will be studying in your first, second, third and fourth years of study. Think about what the study of
each of these subjects might entail.
Figure 6.1 Classification of the South African legal system
6.2 International law
As explained in chapter 5, international law is used every day in, for example, diplomatic and
consular relations, international trade transactions, inter-country transportation of goods by sea and
air as well as cross-border extradition of criminals. The principal subjects of international law are
states. This means that the principal focus of international law is on regulating the relationship
between states at an international and/or regional level, collectively referred to as the supra-national
level. The issues that international law seeks to regulate usually affect more than one state.
jus cogens: literally means ‘compelling law’
When studying international law, you can expect to learn more about the history of international
law, the different sources of international law including treaties (conventions) and international
custom as well as about international relations, international human rights protection after World
War II and humanitarian law. You are likely to learn more about specific branches of international
law including, for example, international environmental law, international trade law, international
criminal law and international private law. There are also international law issues such as the rules
for the recognition of a state, state sovereignty, international crimes, jus cogens as a doctrine
dealing with peremptory international norms accepted and recognised by the international
community of states as being fundamental to the maintenance of an international legal order, and the
difficulties with enforcing international law rules.
REFRAMING
International law permeates many aspects of modern life. We tend to take it for granted, for instance, that we live in a
state called South Africa which is recognised by and which interacts with other states. Many of the goods we buy in
shops have been manufactured in other states and are subsequently shipped and imported to our shores. When we
travel beyond the borders of South Africa, our entry into other states is regulated as is our mode of travel.
While international humanitarian law, the law of war, international human rights law and international environmental
law, among others, may be more clearly discernible as law that is other than national law, the international rules
regulating the recognition and sovereignty of states themselves, the rules of international trade and the laws of
international transport are so part of contemporary existence and everyday life that they appear to be almost invisible.
Yet, they all exist as part of the broader field of international law.
Skills exercise 6.1
Read the article below and then answer the questions that follow.
Brazil vows to take South Africa poultry dispute to WTO
Following the decision of South Africa to impose higher tariffs on imported chicken products from Brazil, the Brazilian
chicken industry said that it would place a case to the World Trade Organization arguing that the South African
government’s decision does not comply with WTO rules on anti-dumping.
According to the WTO, governments can act against dumping if there is a “material” injury to the competing
domestic industry. The government has to be able to show that dumping is taking place, calculate the extent of
dumping (how much lower the export price is compared to the exporter’s home market price), and show that the
dumping is causing injury or threatening to do so.
In June 2011, the International Trade Administration Commission of South Africa (ITAC) initiated an investigation
into the alleged dumping of frozen whole chickens and boneless chicken cuts imported from Brazil and made a
preliminary determination that dumping had taken place, causing harm to the South African Customs Union
industry. The Commission’s report estimates the dumping margin for whole frozen chickens at 63 per cent and 47
per cent for boneless cuts. Hence, the Commission requested that the government of South Africa impose
provisional anti-dumping duties of 6 to 63 per cent on poultry for six months.
According to Francisco Turra, the Chief Executive of Brazil’s poultry association UBABEF, “The poultry sector
along with government agencies will appeal the decision of the government of South Africa, which affects several
Brazilian agribusiness exporters of chicken meat.” “The industry estimates that losses will reach 70 million USD
annually,” he added.
According to UBABEF, South Africa imports 16 per cent of all chicken consumed in the country, 70 per cent of
which is from Brazil. The other 84 per cent comes from local production. The products under investigation for
dumping represent 3 per cent of all poultry products on the market.
“Imports from Brazil of the two products that are the subject of the anti-dumping action represent less than 2 per
cent of local production of these same products – hardly threatening,” said the CEO of the Association of Meat
Importers and Exporters of South Africa, David Wolpert in a letter published in Business Day on February 7.
According to him, an anti-dumping action needs to show actual damage caused by the alleged dumping, yet annual
reports of all local poultry producers show huge profits and not an industry in distress.2
1. What does the WTO stand for? Read about the WTO legal texts on their website.
2. What branch of international law does the dispute between Brazil and South Africa outlined above relate to?
3. How would this inter-state dispute regarding frozen poultry products affect you as a consumer? How would it affect
you if you were a poultry farmer?
4. What would happen if there was no such body as the WTO?
Skills exercise 6.2
During 2012, the state of Syria came under international condemnation for its harsh suppression of dissent and civil
unrest. Visit the website of the International Red Cross (www.icrc.org) and research the concept of international
humanitarian law. Write a three- to four-page essay in which you argue whether Syria has violated any of the conventions
of international humanitarian law or not.
6.3 National law
International law constitutes a very small proportion of all the rules applicable within a state such as
South Africa. All other rules are rules of national or domestic law. These rules only apply within the
territorial area of South Africa. They will therefore in most instances not apply outside the borders
of South Africa, not even to a South African citizen in a foreign country. Domestic law of other
states is referred to as foreign law. When a foreigner residing in the Netherlands, however, refers to
South African law, he or she will speak of foreign law because for this person, South African law is
not domestic Dutch law, but foreign law.
Skills exercise 6.3
Find section 52 of the Marine Living Resources Act.3
1. Why is this particular provision unusual?
2. In what ways does it extend the reach of national law?
As was indicated in Figure 6.1 above, a distinction is made in South African law between public and
private law. The main distinction lies in the public law regulating the structural organisation of the
state, the relationship between different organs of state, for example government departments, and
between the state and its subjects, for example natural persons like you and your fellow students and
legal persons like banks and other private sector corporations. Private law regulates the relationship
between the subjects of the state, in other words between different natural and/or juristic persons,
for example you, your parents, a health practitioner, a private school, a mining company or an
Internet service provider. Within this classification it is, however, possible to identify hybrid sub-
disciplines that do not seem to fit exclusively within the category of public or private law. Such sub-
disciplines include, for example, commercial law, environmental law and medical law which have
characteristics of both private and public law.
COUNTER POINT
The formalistic distinction between private and public law becomes increasingly difficult and impractical in some
areas. This is as a result of, among others, contractual privatisation of public functions, the participation of subjects of
the state in public procurement, and labour law issues in government, for example in the essential services sector,
having an impact on the relationship between government and subjects of the state. However, while it is possible that
the very strict distinction between private and public law has arguably become redundant, a general distinction
between these fields remain useful for the sake of classification of the law.
6.3.1 Public law
The state is the key player in so-called public law relationships. This is because public law regulates
the relationship between government as the regulator and bearer of authority and people, or
subjects, as the regulated. Public law sets out the rules that tell us how the state must and may
interact with the people that it aims to regulate. It also provides the rules governing the relationship
between state institutions and functionaries of the state such as government officials. In this sense,
the public law relationship is often referred to as a vertical one which applies between the state and
private, non-state subjects. At the same time, however, it could also be classified as a horizontal
relationship to the extent that it regulates the relationships between state actors.
6.3.1.1 Constitutional law
Constitutional law mostly deals with the Constitution that sets out the nature of the state and the
constituent organs and bodies of the state, for example national, provincial and local government
and bodies such as the South African Human Rights Commission,4 as well as the relationship
between these bodies. The Constitution regulates the interrelationship between organs of state by
making provision for so-called cooperative government.5 The Constitution further serves to limit the
potential abuse of state power by providing that the state must respect, protect, promote and fulfil
the rights in the Chapter 2 Bill of Rights. The democratic values of human dignity, equality and
freedom are also entrenched in the Bill of Rights.
Constitutional law will further introduce you to the meaning and implications of the notion of
constitutionalism which refers to the protection of the subjects of the state from arbitrary rule and
the efficient operation of the state within the limits set by a constitution. Constitutionalism deals,
among others, with the recognition and protection of fundamental rights and freedoms, the
separation of powers, the independence of the judiciary, the review of the constitutionality of laws
and control over the amendment of the Constitution. We have already discussed some of these
aspects in chapter 2.
Constitutional law will also introduce you to the different branches of the state, namely the
legislative, executive and judicial branches, as well as to the structure of the judicial system, the
different spheres of government and arrangements to facilitate cooperative governance among them,
the basic rules and principles governing public administration and the conduct of the organs of state,
as well as the division of governing powers between the national, provincial and local spheres of
government.
Skills exercise 6.4
Find the case of Democratic Alliance v Ethekwini Municipality 2012 (2) SA 151 (SCA) and write a case summary.
1. What organ of state was implicated in this dispute regarding the renaming of roads?
2. Why would you characterise this case as one involving constitutional law? What other sub-discipline of law is involved
in this case?
6.3.1.2 Administrative law
Administrative law resorts under public law, which would logically imply that it has to deal with
issues of state/government administration. The executive authority in South Africa functions
alongside the legislative and judicial authorities, and its main task is to govern, implement and
enforce the rules set by the legislative authority. Administrative law aims to regulate the
administrative duties, functions and powers of the executive authority. In other words, while
constitutional law sets out how the state is constituted or looks like, administrative law provides the
laws regulating how the state governs and how it should go about its duties as the regulator in
relation to its own institutions and officials, and these institutions and officials and subjects. Broadly
speaking, it therefore regulates state administration or issues of state governance.
REFRAMING
Every single individual in South Africa has been at the receiving end of administrative action at one time or another in
their lives. At the very minimum, every citizen obtains a birth certificate or official identity document. Non-citizens may
have permanent residence or perhaps refugee status. Apart from these critical decisions that affect our status in
South Africa, administrative action influences a myriad actions in our lives such as receiving social grants, obtaining a
driving licence, registering a motor vehicle and many others.
At the core of South African administrative law is section 33 of the Constitution stating that
‘[e]veryone has the right to administrative action that is lawful, reasonable and procedurally fair’
and that ‘everyone whose rights have been adversely affected by administrative action has the right
to be given written reasons’. The Promotion of Administrative Justice Act6 sets out the details of
South African administrative law including the definition of ‘administrative action’ to which its
content applies. An administrative action is defined in section 1 of the PAJA as ‘any decision taken,
or any failure to take a decision by an organ of state when exercising a power in terms of the
Constitution or a provincial constitution or exercising a public power or performing a public
function in terms of any legislation’. However, the definition continues showing that a non-
governmental, natural or juristic person can also execute administrative acts when exercising a
public power or performing a public function in terms of an empowering provision. An
administrative action as per the meaning of the PAJA will always adversely affects the rights of a
person and will have a direct, external legal effect.
Skills exercise 6.5
Carefully read the definition of ‘administrative action’ in section 1 of the PAJA. With reference to this definition, explain
whether you think the following qualify as forms of ‘administrative action’ or not:
1. the enactment of a by-law by a municipality
2. a provincial official’s decision to grant a tender to a preferred bidder
3. a vehicle testing centre’s decision to register a vehicle in your name
4. the National Prosecuting Authority’s decision to prosecute a particular individual.
THINKING LIKE A LAWYER
Constitutional and administrative law are closely related. Given a set of facts, it may at times be difficult to know to
which area of law one should refer. While it is not really possible to articulate hard and fast rules, a constitutional law
case is likely to involve questions about the powers and functions of state organs as such, or about the application of
the Bill of Rights. An administrative law case is more likely, although not necessarily exclusively, to involve the actions
of the executive arm of government in the process of implementing legislation.
6.3.1.3 Criminal law
substantive law: concerned with the substance of legal rights, duties and obligations
adjectival or procedural law: concerned with how one goes about enforcing or protecting rights and duties
Criminal law, as the name suggests, deals with matters where people are presumed to have
committed crimes. It is therefore that part of the law which comes into play where, for example,
someone is suspected of having committed fraud, where someone has committed rape, theft or
murder, where someone drives a motor vehicle under the influence of alcohol or where a person is
caught in possession of an illicit substance such as cannabis. It is divided into substantive and
adjectival, or formal, sub-categories of the law.
6.3.1.3.1 Substantive criminal law
Criminal law forms part of the substantive law as shown in Figure 6.1 above. South African law
makes provision for various crimes including crimes against:
• the state such as high treason
• the family such as common law abduction
• public welfare such as corruption
• the person such as assault and rape
• property such as robbery and arson.
proscription: outlawing; prohibiting
Criminal law deals in essence with the general principles of criminal law, in other words those
principles applicable to all types of crimes. In criminal law, you will learn everything about the
requirements for criminal liability, including legality and conduct, compliance with the definition of
proscription of different offences, unlawfulness and culpability. You will furthermore be introduced
to different theories of criminal punishment and the requirements for a range of specific crimes with
details on who can be held criminally liable, types of defences and criminal capacity, for example.
Skills exercise 6.6
Find the case of S v Thebus 2003 (6) SA 505 (CC) dealing with the constitutionality of the common law doctrine of
common purpose. Read paragraphs 37–40. In your own words, summarise what the court says about the definitional
elements of a crime and the characteristics of criminal conduct.
6.3.1.3.2 Adjectival criminal law: criminal procedure
The law of criminal procedure lays down the procedure by which alleged criminals are brought
before a court and tried for alleged offences. At the core of the South African law of criminal
procedure is section 35 of the Constitution dealing with arrested, detained and accused persons. The
Constitution lays down a number of rights of such persons including:
• the right of arrested persons to remain silent (section 35(1)(a))
• the right at the first court appearance after being arrested to be charged, or to be informed of the
reason for detention to continue, or to be released (section 35(1)(e))
• the right of a detained person to communicate with and be visited by that person’s spouse or
partner (section 35(2)(f)(i)).
Every accused person furthermore has the constitutional right to a fair trial including a range of
auxiliary rights such as the right to be present when being tried and the right not to be compelled to
give self-incriminating evidence (section 35(3)). When studying the law of criminal procedure you
will learn more about these constitutional rights as well as the content of the Criminal Procedure
Act.7 This extensive Act makes provision for every aspect of the process applicable to prosecution
and the putting on trial of an alleged criminal ranging from the prosecuting authority and the state’s
dealing with property connected to offences to the issuing of notices to appear in court, bail,
witnesses, evidence, sentencing, compensation, and procedural reviews and appeals. We discuss
these issues further in chapter 9.
Skills exercise 6.7
Research the notion of telephone tapping and then determine the legal status of telephone tapping in South Africa. For
example, is it legal, illegal or allowed under particular circumstances only? Consult the Criminal Procedure Act to
determine whether evidence obtained by means of telephone tapping would be admissible in a South African court.
6.3.2 Private law
Private law regulates the relationship between private persons, in other words, persons acting
without state or political authority. Private law most often comes into play in important social
relationships such as when people:
• conclude a contract
• become engaged, married or divorced
• claim compensation from one another because of a wrongful act
• determine the transmission of their estate on their death.
None of the parties in the private law relationship acts with state authority or power. However, while
we have seen that the state/government is the main actor in the public law domain by virtue of it
having power and exercising political authority, this does not mean that it cannot also be a party to
the private law domain in certain instances where it does not act as the state with public, political
authority. As with criminal law, private law can also be divided into substantive private law and
adjectival private law.
6.3.2.1 Substantive private law
It is intuitive to assume that people or persons are the main subjects of law. From everyday life,
however, we know that law also binds and regulates ‘non-persons’ or a collection of persons
working towards one goal such as banks, universities, churches and companies. These entities or
institutions are clearly not ‘persons’ in the strict sense, but rather a collection of persons acting as
one entity. The fact that they are regulated by law means that they are regarded by the law as being
one person. Whereas a single person for the sake of regulation by law is called a natural person,
these collections of persons are called juristic persons and are as subject to the law as natural
persons are. This means that where practically possible, all the areas of private law are equally
applicable to a bank, for example, as they are to a natural person. Clearly then, matters that family
law regulates would hardly be applicable to a bank as we shall see below. In these ‘absurd’
instances, certain divisions of the private law are not applicable to juristic persons.
The following are all sub-categories of substantive private law which provide the substantive
private law provisions for those instances where people (or the state) act without state authority:
• law of persons
• family law
• property law
• law of obligations, including the law of contract, delict and succession
• law of personality.
A brief description of each of these areas of law follows.
6.3.2.1.1 Law of persons
In its most general sense, the law of persons determines what a person is in the eyes of the law. It
determines a person’s status and his or her standing in law. The law of persons clearly affects
everyone as it forms part of the South African objective law which orders the conduct of legal
subjects as entities capable of holding rights, duties and capabilities. ‘Legal subjects’ is the way in
which persons are referred to in law. However, not every legal person is necessarily a human being.
The law recognises two classes of persons, namely natural and juristic persons – both have legal
personality. Thus, a company listed on the Johannesburg Stock Exchange could conceivably also
fall under the remit of the law of persons. Animals and deceased people, however, are not classified
as persons and do not have legal personality.
Legal personality begins on the day of birth. This immediately raises questions about the legal
status of the unborn child. You will learn more about the position of unborn children and abortion in
the law of persons. You will also learn about the end of legal subjectivity including the legal
requirements for death, the registration of death and the presumption of death.
The law of persons further deals with important issues which affect the person such as domicile
and citizenship, adoption, minority, prodigality, curatorship, insolvency and legal capacity. In
dealing with the law of persons, issues of race, custom and religion are often also important.
REFRAMING
Does an unborn foetus have legal rights? When does a person become a full legal subject in the eyes of the law?
When do people have full capacity to act as legal subjects? Can things other than human beings be legal subjects?
These and other questions fall under the banner of the law of persons.
Skills exercise 6.8
Find the case of Christian Lawyers Association of South Africa v Minister of Health 1998 (4) SA 1113 (T) that deals with
whether the unborn foetus enjoys the right to life. Summarise the arguments put forward by the applicants and
respondents respectively. Write a one-page essay in which you state your view on this issue and the supporting reasons.
6.3.2.1.2 Family law
South African family law covers the legal rules applicable to family relationships such as the
relationships between parents and children, and between spouses. It is a subdivision of the
substantive private law and regulates the origin, content and dissolution of the legal relationships
between husband and wife, parties in a civil union, parents or guardians and children as well as the
relationship between other relatives. There are sub-branches of family law including, among others,
the law of engagement, matrimonial law (including the law of civil unions), matrimonial property
law, the law of divorce and the law of parenting.
In family law, you will learn more about the legal nature and types of marriages in South Africa
including civil and customary marriages. You will learn about the recognition of Muslim and Hindu
marriages, for example, as well as the statutory protection afforded to same-sex partnerships in the
Civil Union Act.8 You will also learn about the legal implications of domestic partnerships between
people of the opposite sex, the process of getting engaged, as well as about the legal rules regulating
divorce. You will also learn more about the regulation of domestic violence based on, among others,
the content of the Domestic Violence Act.9
REFRAMING
Most people grow up in the context of some sort of family. While for many years the nuclear family dominated thinking
about families, in contemporary South Africa many different forms of family are recognised. Think about the family in
which you grew up and the relationships within that unit that were regulated by law. You could think about the
relationship between partners (married, customary relationships, co-habitation) and between parents and children,
and what aspects of those relationships the law sees fit to protect.
Skills exercise 6.9
Visit the website of the South African Law Reform Commission (http://salawreform.justice.gov.za) and read Discussion
Paper 104 on Domestic Partnerships. Write a three-page essay in which you discuss how the recognition of a variety of
forms of domestic partnerships is changing the face of family law in South Africa.
6.3.2.1.3 Property law
Property law is a perfect example of a legal field which crosses the boundaries of the private and
public law divisions in South African law. In other words, it is a hybrid branch of the law. It deals
with legal persons’ ability to undertake certain actions with regard to certain types of objects.
Property law, in essence, regulates the rights of people over certain types of objects or things.
Things are usually the property of someone, hence property law. The main function of this branch of
the law is to regulate the competing interests of the legal subjects acquiring property rights and
interests.
REFRAMING
Most students will not yet own fixed or immovable property such as a house or a piece of land, although you may
already own a variety of movable forms of property such as a car, a personal computer or a cellphone. The variety of
relationships that arise between people and the objects they own or possess, and the relationships that then arise
with other people in respect of such ownership or possession are the province of the law of property.
Since 1996, the Constitution also affords protection to certain proprietary relationships such as the
rights that indigenous communities vest in historical land. Property in the private law sense,
however, refers to a person’s patrimonial assets within his or her estate, for example residential
property, vehicles, investments and art.
In property law, you will learn more about the notion of ownership and the protection thereof as
well as the range of forms of property rights that exist including real security, servitudes, mineral
rights, land rights and water rights. You will also learn about ways in which property could be
expropriated by the state (see section 25 of the Constitution) and the ways in which ownership in
property is transferred.
Skills exercise 6.10
Read the following article: Van der Walt, A.J. 2005. Transformative constitutionalism and the development of South
African property law. Tydskrif vir die Suid-Afrikaanse Reg, 22(4):655–689. Reflect on how the ideas in this article expand
your understanding of transformative constitutionalism as introduced in chapter 2.
Intellectual property law, as the name suggests, also regulates property, but in this instance, it is a
specific type or kind of property. People do not only own or control movable and immovable
property such as a car or a house. They could also, for example, own a song that they have written
and performed. However, the song is abstract and cannot be tangibly perceived in the same way as a
house. Yet, if the song reaches the charts, it could earn the owner a lot of money. If someone else
wants to perform the song, he or she must obtain the express permission of its creator and pay that
person a certain amount of money for this privilege. This is because the song is the intellectual
property of someone else. You are also not allowed to download a film or a television series from
the Internet because they are the intellectual property of their creators. Downloading them without
permission and payment of the relevant fee to the creator amounts to theft.
Intellectual property law then regulates and protects the intellectual property rights someone has
to his or her intellectual property, for example patents, copyright and trademarks, and the
concomitant duties the rest of the world has with respect to this property.
Skills exercise 6.11
Read the following article and then answer the questions that follow.
Piracy in South Africa
South Africa’s relatively high per capita GDP, in African terms, sophisticated infrastructure and financial systems
coupled with high penetration levels of Western media, technology and lifestyles present a lucrative market for
counterfeit goods. At the same time, unemployment remains the most critical economic challenge in South Africa,
resulting in many resorting to crime.
The counterfeit goods network benefits from South Africa’s long, porous borders, under-resourced law
enforcement agencies, improved and expanding international transport and communication links, and the lack of a
harmonised legislative environment in the region.
As with South Africa’s dominance of the economy of sub-Saharan Africa, Gauteng dominates the South African
economy and, as a result, provides the most lucrative market for counterfeit goods, followed by Cape Town and
Durban. The major gateway for inbound counterfeit goods is OR Tambo International Airport in Johannesburg.
The invasion of pirate DVDs, increasingly of movies not available legitimately anywhere in the world, has resulted
in a market share in excess of 50% in 2005 for pirated product compared with the fairly stable rate of 10% prior to
2001. This level of piracy would equate to a potential loss of approximately three million unit sales.
The potential for increased market share of pirated products is high, particularly as a result of improvements in
quality, pre-release availability, price and distribution channels, increased downloading capacity and access to web-
based DVD film and interactive game sale sites.10
Using one of the published databases of South African statutes, determine which particular statute dealing with
intellectual property may be invoked to counter the crime of piracy. What offences and penalties does the Act create for
involvement in pirated products?
6.3.2.1.4 Law of obligations
Whereas property law regulates property rights and duties stemming from those rights, the law of
obligations is that part of patrimonial law which regulates personal rights and obligations. Personal
rights and obligations stem from contracts and delicts, which are subdivisions of the law of
obligations.
a) Law of contract
The law of contract deals with how different forms of contract come into being, are managed and
terminated, and the results that flow from premature breach of agreement. In essence, the law of
contract regulates the legal relationships (contracts) between people. The law of contract is therefore
that part of South African law which comes into play when people conclude a contract, either
verbally or in writing. It sets out the formal requirements for the conclusion of a contract, the rights
and duties arising from the contractual agreement and the enforcement of these, remedies in the
event that a party to the contract does not abide by the contractual terms, and the instances where
contracts are terminated.
REFRAMING
Contracts relate to the performances we owe one another in terms of binding agreements. Your landlord agrees to
provide you with continuing access to your flat or apartment in exchange for the payment of rent (a contract of lease).
The car salesperson agrees to provide you with a car in exchange for payment of the purchase price (a contract of
sale). As a lawyer one day, your clients will agree to allow you to manage or represent their affairs in particular ways
(a contract of agency).
Skills exercise 6.12
While the law of contract is strongly vested in the common law, various statutory enactments are gradually encroaching
on the so-called freedom to contract. Read the summary in the South African Law Reform Commission’s Discussion
Paper 65 on Unreasonable Stipulations in Contracts and the Rectification of Contracts on their website at
http://salawreform.justice.gov.za/dpapers.htm. Then do some research on the Consumer Protection Act.11 How does this
Act affect the conclusion of contracts between free and willing parties?
b) Law of delict
The law of delict is a significant branch of South African law dealing with the circumstances in
which a person can claim compensation from another for harm that has been sustained. The law of
delict is premised on the South African common law. Within the classification of the law, the law of
delict falls within the law of obligations that forms part of the law of patrimony in the substantive
private law branch of the law.
REFRAMING
There are many ways in which we can cause harm to one another other than through the commission of a crime. You
will experience harm or damage when a person bumps into the back of your car, if you twist your ankle as a result of
unmarked pot-holes in the pavement, if somebody maliciously slanders or defames you, or if you harm yourself in any
other way as a result of the negligence or intentional behaviour of another.
A distinction must be made between the law of contract, criminal law and the law of delict. Even
though all three branches of the law could in some instances deal with some sort of harm, the law of
delict is used to deal with the wrongful and blameworthy conduct of a person which caused harm to
another, for example a vehicle accident in which a runner was hurt or the drowning of a child who
was left in the care of a neighbour.
In the example of the car accident, criminal law will deal with the possible crimes that have
allegedly been committed during the car accident. For instance, the accident could have been a
result of the driver having been under the influence of alcohol. It is a crime to drive if the level of
alcohol in your blood exceeds the legal limit. In addition to the numerous claims for damages that
someone might have against the driver, the state may also institute criminal proceedings against the
drunk driver.
In the law of delict, you will learn about the five elements that must be present before the conduct
complained of will be classified as a delict. These are:
• an act must have occurred which includes either a positive act or an omission or failure to act
• wrongfulness
• fault
• harm
• a causal link between the act and the damages that have been caused.
It is important to realise that despite the apparent similarities between them, delicts and crimes are
fundamentally different legal constructs. The two main differences lie in the fact that delictual
remedies protect private interests (forming part of private law) while criminal sanctions are penal in
nature, punishing transgressions of the law affecting the public interest (forming part of public law).
Skills exercise 6.13
Find the case of Groenewald NO v Swanepoel 2002 (6) SA 724 (E) that deals with the relationship between a criminal
conviction and proceedings to sue in delict for civil damages arising from the same act. Make a case summary. List all
the rules articulated by the judge on the relationship between criminal and civil proceedings arising from the same set of
facts.
6.3.2.1.5 Law of succession
The law of succession deals with what happens to a person’s estate after he or she dies. A person
can choose how this should occur and to whom to leave all his or her possessions by drafting a
document called a will, in which case the person will die testate. Alternatively, a person can allow
his or her estate to devolve or pass to other people without a written will by operation of the law. In
this case, the person is said to die intestate. The rules for both testate and intestate succession are
grouped together under the law of succession. The law of succession also describes how to draft,
formalise and execute a will.
REFRAMING
The two things of which everyone can be certain are that we must pay taxes and that we will all die eventually. In the
event of the latter, something has to happen to your estate. Your estate includes all the material and immaterial forms
of property which you amassed during your lifetime, for example your home, car, DVDs and golf clubs.
6.3.2.1.6 Personality law
Personality rights are distinct types of rights. They should not be confused with subjective rights
which are regulated by the law of persons discussed above. Personality rights instead relate to
issues of someone’s personality such as a good name, honour and reputation. People often feel that
their good name or reputation has been violated by, for example, a report in the newspapers. They
could then take legal action against the newspaper based on the law of delict. They would argue that
the publication of the damaging remarks in the press constitutes a wrongful act and satisfies the
other elements necessary to establish a delict. They could then claim some form of compensation,
which is usually the payment of an amount of money.
6.3.2.2 Law of civil procedure and civil evidence (adjectival private law)
As a branch of adjectival law, civil procedure is the body of law concerning the claiming of relief
by means of civil proceedings in a court of law, for example the magistrates’ courts, the High Courts
or the Constitutional Court. In civil procedure, you will learn about the different sources of South
African civil procedure and evidence, the different models or types of proceedings for resolving
civil disputes resulting from, for example, delicts, and the jurisdiction and specific procedures of the
different civil courts in the country. You will learn more about so-called ex parte applications,
urgent applications, time limits and non-compliance with court orders.
The law of evidence is closely related to the law of civil procedure and regulates the manner in
which witnesses should testify in court and what types of evidence are considered to be admissable
and inadmissable in a court. While studying civil procedure and evidence, you will also realise that
court trials in South Africa work in a fundamentally different manner to those in England or the
United States of America. We discuss these issues further in chapter 9.
6.4 Hybrid sub-disciplines
Some legal sub-disciplines cannot be categorised as belonging solely to any one of the above
categories, with their content frequently overlapping the public-private law and even the national-
international divide. The sources of law in which the rules of these sub-disciplines are contained are
frequently mainly statutory in nature.
6.4.1 Environmental law
Environmental law is a relatively new sub-discipline of law which only became popular during the
latter half of the twentieth century. It deals with the issue of sustainable development which seeks to
provide an ever-increasing world population with the natural resources required to sustain life not
only for current generations, but also for future generations. As its name suggests, environmental
law focuses on environmental issues, which include the design and enforcement of legal rules
relating to, among others, climate change, protecting plants and animals, and protecting people from
pollution. Although it is relatively young in comparison to other sub-disciplines of South African
law, it is nevertheless important in a country with so much natural beauty and resources which must
be shared in a sustainable way among a growing population, the majority of whom do not have
adequate access to such resources at all. Environmental law spans private and public law rules, as
well as international law rules.
6.4.2 Commercial law
Commercial law could also be referred to as business law or mercantile law in as far as it deals
with a hybrid of branches of the law important for commerce or trade and industry in South Africa.
Commercial law fits as much with private law as it does with public law. Commercial law
encapsulates many different branches of the law including the following:
• Banking law regulates the powers and functions of banks by means of many different statutes
including the Banks Act12 and the National Credit Act.13
• South Africa has recently adopted the new Companies Act14 which forms the backbone of South
African company law dealing typically with issues such as the registration, incorporation and
management of companies.
• The law of insolvency is concerned with insolvent estates, bankruptcy, the winding up and
liquidation of companies and debt counselling based on, among other sources, the Insolvency
Act.15
• Labour law is based in part on the content of the Basic Conditions of Employment Act16 and the
Labour Relations Act.17 Here one finds a wide array of legal sources regulating the relationship
between employers and employees and the conditions of employment.
• Taxation law deals with all matters related to the payment and collection of taxes and the
relationship between taxpayers and the South African Revenue Service (SARS). One of its
sources is the South African Income Tax Act.18
• Insurance law has to do with, among others, the regulation of the South African insurance
industry as well as the requirements for and rights and duties arising from insurance contracts.
As you can see, all of the foregoing examples and sub-disciplines are concerned with some or other
commercial or financial aspects and are thus conveniently grouped together under the broader
heading of commercial law.
Skills exercise 6.14
Which piece of legislation currently regulates the formation and operation of companies in South Africa? To acquire a
taste for the debates that preceded the coming into effect of this legislation, read the Department of Trade and Industry’s
South African Company Law for the 21st century: Guidelines for Corporate Law Reform available at
http://www.info.gov.za/notices/2004/26493/.
6.4.3 Educational law
Educational law is one of the youngest sub-disciplines of South African law but no less important
due to this fact. It typically sets out the rights and duties of those involved in South Africa’s school
system, including, among others, the administration of schools, the functions of school boards and
the duties of government with respect to providing education.
6.4.4 Information technology law
Information technology law, or IT law as it is popularly called, has become an indispensable part
of the South African legal system in recent years, especially since the popularisation of information
technology and, more specifically, the Internet. It sets out in detail the rules relating to, among
others, the use of the Internet, the protection of electronic information and electronic agreements, to
name but a few.
The above is only a selection of the hybrid sub-disciplines within the discipline of law. There are
also medical law, sports law, local government law, aviation and space law and child law, for
example. While we do not discuss these further for the purpose of this book, it is likely that your
university would offer a course on some of these disciplines.
6.5 Integration of disciplines
In chapter 13 of this book you will learn more about the process of solving legal problems. In real
life, the solving of a legal problem rarely, if ever, demands the identification and application of just
a single branch or discipline of the law. In most instances, the facts and remedies sought in a legal
case will require the skilful integration of various disciplines. A single set of facts may require of
you to apply different rules and principles from, for example, the law of contract, the law of civil
procedure and evidence as well as labour law. Although a systematic understanding of the
classification of South African law is important, you should always envision the different disciplines
of the law as an integrated, closely interrelated whole.
Skills exercise 6.15
Read each of the following sets of facts and identify as many divisions of the South African law as possible that could
potentially apply to solving the problem:
1. Kabelo works for XBG Steelplant. On 1 May 2012, Kabelo dies from a lung-related illness. The doctor says that the
illness can be attributed to years of exposure to hazardous gases at the plant. Kabelo’s wife and children institute a
claim for loss of income. Kabelo leaves an estate of R500 000. Kabelo is originally from a traditional community in the
Free State where the rule applies that only sons may inherit from their deceased father.
2. Mario concludes a contract with Brendan to buy 10 second-hand Ducati motorcycles. On 13 March 2013, Brendan
delivers six of the motorcycles to Mario. Brendan indicates that he will not be able to deliver 10 motorcycles as was
initially agreed. Mario experiences a loss since he has already concluded sale agreements with third parties to resell
all 10 motorcycles. On 20 March 2013, the police arrive at the business premises of Mario. It transpires that the six
motorcycles which Brendan delivered were stolen motorcycles which had been illegally imported from Italy. The police
confiscate the motorcycles and request Mario to appear in the local magistrates’ court on 10 April as a witness in the
case against Brendan.
3. Rumours have it that Abeko Mining Group has for some years been causing groundwater pollution in the area of
Calitzdorp. However, the municipality and other organs of state do not act against Abeko because the matter involves
shady dealings and allegations of bribery of some high-ranking municipal officers. A local non-governmental
organisation (Stop Bribery and Save the Environment – SBSE) decides to take the mining group to court to prevent
further pollution and to make public the corruption. The non-governmental organisation also acts on behalf of a small
indigenous community which claims that their children are dying as a result of the ongoing pollution.
THIS CHAPTER IN ESSENCE
1. The classification of the law means breaking up the large body of legal rules into
smaller divisions in a logical and systematic way. We usually speak of law as a
discipline and its various sub-divisions as sub-disciplines or fields of the law.
2. The principal focus of international law is on regulating the relationship between states
at an international or regional level.
3. National or domestic law applies only within the territorial area of South Africa.
National law is divided into public law and private law although there are also hybrid
sub-disciplines.
4. Public law regulates the relationship between government as the regulator and bearer
of authority and people, or subjects, as the regulated. It comprises the following:
4.1 Constitutional law mostly deals with the Constitution that sets out the nature of the
state and the constituent organs and bodies of the state.
4.2 Administrative law regulates the administrative duties, functions and powers of the
executive authority.
4.3 Criminal law deals with matters where people are presumed to have committed
crimes. It consists of substantive criminal law and adjectival criminal law or the law
of criminal procedure.
5. Private law regulates the relationship between private persons. Persons include
natural persons and juristic persons. Sub-disciplines of substantive private law include
the following:
5.1 The law of persons determines a person’s status and his or her standing in law.
5.2 Family law covers the legal rules applicable to family relationships such as the
relationships between parents and children, and between spouses.
5.3 Property law regulates the rights of people over certain types of objects or things.
5.4 The law of obligations includes the law of contract, delict and unjustified
enrichment:
• The law of contract regulates the legal relationships (contracts) between
people.
• The law of delict deals with the circumstances in which a person can claim
compensation from another for harm that has been sustained.
• The law of unjustified enrichment deals with what happens to a person’s estate
after he or she dies.
5.5 The law of personality deals with personality rights that relate to issues of
someone’s personality such as a good name, honour and reputation.
5.6 Adjectival private law deals with the law of civil procedure and the law of evidence.
6. The content of hybrid sub-disciplines frequently overlaps the public-private law divide.
Examples of these sub-disciplines include environmental law, commercial law,
educational law and information technology law.
Notes
1 Our classification is based on the approach of Du Plessis, L. 1999. Introduction to Law 3rd ed., p. 261 and
Kleyn, D. and Viljoen, F. 2010. Beginner’s Guide for Law Students 4th ed., p. 93.
2 International Centre for Trade and Sustainable Development. 2012. Brazil vows to take South Africa poultry
dispute to WTO. Bridges South Africa (12)1, 17 February. [Online].
Available atAvailable at: http://ictsd.org/i/news/bridges-africa/125699 [3 March 2012].
3 18 of 1998 (the ‘Marine Living Resources Act’).
4 See Chs 5, 6, 7 and 9 of the Constitution, for example.
5 Ch 3 of the Constitution.
6 3 of 2000 (the ‘PAJA’).
7 51 of 1977 (the ‘Criminal Procedure Act’).
8 17 of 2006 (the ‘Civil Union Act’).
9 116 of 1998 (the ‘Domestic Violence Act’).
10 South African Federation against Copyright Theft. 2012. [Online].
Available atAvailable at: http://www.safact.co.za/piracy_facts.htm [21 April 2012].
11 68 of 2008 (the ‘Consumer Protection Act’).
12 94 of 1990 (the ‘Banks Act’).
13 34 of 2005 (the ‘National Credit Act’).
14 71 of 2008 (the ‘Companies Act’).
15 24 of 1936 (the ‘Insolvency Act’).
16 75 of 1997 (the ‘BCEA’).
17 66 of 1995 (the ‘LRA’).
18 58 of 1962 (the ‘Income Tax Act’).
Chapter 7
The legislative process and the interpretation
of statutes
7.1 Introduction
7.2 The difference between promulgation and passing
7.3 The legislative process at national level
7.4 Assent
7.5 The legislative process at provincial level
7.6 The legislative process at local level
7.7 The hierarchy and status of legislation
7.8 Amendments and repeal
7.9 Statutory interpretation
This chapter in essence
7.1 Introduction
This chapter explores the most important aspects of the legislative process in South Africa. In
contrast to the common law, which is made and developed in the courts,1 the phrase ‘legislative
process’ refers to the way in which statutes (legislation) come into existence as valid and applicable
law. The authority to make law validly in the form of statutes is regulated by Chapter 4 of the
Constitution. More specifically, section 43 of the Constitution provides for a three-tier system of
legislative authority that accords with the three spheres of government. In the national sphere, this
authority is vested in parliament. At provincial level, the provincial legislature is mandated to make
provincial law and at local level, this responsibility resides with municipal councils. By way of
introduction, this chapter concentrates on the legislative process at national level.
REFRAMING
You should by now realise that law is concerned with the elucidation of rules and principles for the just ordering of
social coexistence. In different social settings, however, we not only have rules, but we also have rules about who
makes the rules. In a family, for instance, the unspoken rule may be that it is the parents who define what is and what
is not acceptable behaviour. In a religious context, the rule may be that the rules by which a particular religious
community must live are contained in one or a few authoritative texts and/or the deliberations of particular religious
institutions.
In law, there are also rules about how law is made. Hart, in his book, The Concept of Law, refers to rules about
making rules as the ‘rule of recognition’ in a legal system. This rule defines the common identifying test for legal
validity in a particular legal system, such as the process by which bills are made into law through a proper
parliamentary procedure. Hart’s concept of the rule of recognition is, of course, a central tenet of his theory of legal
positivism. As outlined in chapter 2, it is no longer sufficient for laws in South Africa merely to comply with the
procedures for the enactment of the law as compliance with the normative framework of transformative
constitutionalism is also required.
7.2 The difference between promulgation and passing
According to Du Plessis,2 the passing of a statute involves a wider concept than promulgation. This
is because passing involves ‘the initial processes’ whereby an enactment of a legislative body ‘is
called into existence, its wording is decided on and the text is finalized.’3 Promulgation occurs after
passing and is necessary to bring the enactment into operation. Promulgation usually occurs through
publication in the Government Gazette or relevant provincial gazette. Section 13(1) of the
Interpretation Act4 provides that an enactment comes into operation on the day of its publication in
the Gazette. This day of publication begins immediately on the expiration of the day preceding it, in
other words at 00:00.5
THINKING LIKE A LAWYER
Why do you think it is important that legislation is published? Why is it important to know exactly at what hour (00:00)
on publication day an act becomes operative?
Skills exercise 7.1
Read the extract from R v Zuma6 and then answer the questions that follow.
SELKE, J.: This is an automatic review from the magistrate’s court for Umvoti. The accused – a native man of the
estimated age of twenty-five years – was convicted of the offence of robbery, alleged to have been committed on
the 19th April, 1952. He was sentenced to serve six months’ imprisonment with hard labour, but, as the conviction
took place on the 6th June, this sentence appears to be an incompetent one because of Act 33 of 1952, which, it
seems, came into force on the 28th May, 1952, with its promulgation in the Union Gazette Extraordinary of that
date, and requires that any male person (other than a person over the age of fifty years), convicted of, inter alia,
robbery, shall be sentenced to whipping (not exceeding ten strokes) with or without imprisonment with hard labour.
The magistrate who tried the present case has explained, in reply to a query by the reviewing Judge, that, as he
was not clear whether or not Act 33 of 1952 compelled him to inflict corporal punishment in a case where the
offence was committed before the promulgation of the Act, he interpreted the Act as leniently as possible and rather
in favour, than to the prejudice, of the accused person. I should be entirely in favour of such an interpretation did I
think that the Act gave rise to a reasonable doubt in this relation. As at present advised, however – and I speak
without having heard formal argument – I do not think it does; for, whatever doubts there may be about the
operation of the Act in other of its aspects, there seems no reasonable doubt that, where the conviction of the
accused takes place after the date on which the Act came into force, the Act applies to the sentence. Sec. 14(1) of
the Interpretation Act, 5 of 1910, enacts that in the absence of other provision a statute comes into force on the day
when it is published as a law in the Government Gazette.7
1. Explain in your own words the legal problem (facts) as set out in the above judgment.
2. State the judge’s decision in your own words.
Skills exercise 7.2
In the Government Gazette of 30 November 2006, the presidency published the Civil Union Act. Above the long title of
the Act it is indicated that the president signed the English text and that it was ‘assented to 29 November 2006’. When
did the Civil Union Act commence?
It is possible for an enactment to come into operation on a day after its publication. Generally, this
can happen in one of two ways:
• First, the published act itself can contain the date on which it will come into operation. This is
referred to in the act as the commencement date.
• Second, the published act can provide that the date of its commencement will be fixed by
proclamation by the president or a provincial premier in the Gazette.8
retrospective operation: when a statute takes effect from a date in the past
In exceptional circumstances, it is also possible for a statute to come into effect on a date before its
publication in the Gazette. This will be the case when the act has retrospective operation. Bear in
mind, however, that the principles of the rule of law create a presumption against retrospective law.9
The above discussion of the difference between passing and promulgation implies that a statute
cannot ordinarily ‘be promulgated without publication in the Gazette’.10 Du Plessis notes two
exceptions to this general rule:
• First, it could be a requirement of a statute’s promulgation that it be published in a way or form in
addition to its publication in the Gazette, for instance the exhibition of a notice in a public
place.11
• Second, in exceptional circumstances, publication in the Gazette may be waived in terms of
section 16A of the Interpretation Act. In these circumstances, if the president is satisfied that the
Gazette cannot be published or that ‘publication will be seriously delayed as a result of
circumstances beyond the control of the Government Printer’,12 he or she can proclaim rules for
an alternative mode of publication.13
7.3 The legislative process at national level
The legislative authority of the national sphere vests in parliament. Section 42(1) of the Constitution
defines parliament as consisting of the National Assembly and the National Council of Provinces
(NCOP). According to section 42(3), the National Assembly consists of the elected representatives
of the people and, as such, must ensure government by the people ‘under the Constitution’. The
NCOP represents the provinces at the national sphere to ensure that the interests of the provinces are
represented and taken into account when national legislation is made.14
A number of events can trigger parliament’s legislative process. For example, a court can order
that an existing act is constitutionally invalid and that there is a need for parliament to address this
inconsistency with the Constitution through the legislative process. In Minister of Home Affairs v
Fourie; Lesbian and Gay Equality Project v Minister of Home Affairs,15 for instance, the
Constitutional Court declared that the Marriage Act16 was unconstitutional to the extent that it did
not provide for same-sex marriage. The court suspended its order of invalidity of the Marriage Act
for one year from the date of the judgment and ordered parliament to cure the unconstitutionality
through the legislative process.
The legislative process, however, is, by and large, triggered by a government department that
proposes new legislation to give effect to a newly formulated policy as contained in a Green Paper.
This is published for public comment in terms of sections 59 and 72 of the Constitution. Once the
Green Paper has been considered, the department reissues another version of the proposed policy
called a White Paper, which is also available for public comment. The department then formalises
the proposed new law in a bill. This bill is tabled, together with a summarising memorandum,
before cabinet for approval to introduce it in parliament.
Skills exercise 7.3
You are a journalist for your local community newspaper. Locate the 2011 Green Paper on Land Reform on the Internet
or from the library and then answer the following questions.
1. Which government department is responsible for this Green Paper?
2. Prepare a short report setting out government’s justification for this Green Paper as well as explaining what it hopes to
achieve with the policy set out in the paper.
Once cabinet has approved a bill for introduction in parliament, the relevant minister must submit
copies of the proposed bill to the Speaker of the National Assembly and to the Chairperson of the
NCOP. Before a bill can be formally introduced into parliament, the state law advisers must be
approached for purposes of certifying the bill. Certification entails an evaluation of the bill for
consistency with the existing law and the Constitution. The state law advisers can elect not to certify
the bill, but must provide parliament with reasons.
Skills exercise 7.4
Read the extract from the newspaper article below and answer the question that follows.
State law adviser says Info Bill is democracy in action
LYNLEY DONNELLY – Aug 12 2011 00:00
The Protection of Information Bill is now in its 11th draft but chief state law adviser Enver Daniels remains adamant
that the original version would have passed muster constitutionally.
Speaking from his office in the Cape Town CBD this week, Daniels defended the performance of his division,
which is tasked with advising the state on legal matters and drafting legislation.
Before draft legislation is submitted to Parliament, the office of the chief state law adviser is required to certify that
it is constitutional. Daniels said his office believed the Bill had, from the outset, sufficient safeguards to counter any
charge of unconstitutionality.
Despite his assertions, numerous public interest groups, legal experts and opposition parties have argued that the
Bill requires serious reworking and even the ANC has conceded numerous points contained in the original draft.
Daniels disagreed with the criticism that the serial redrafting of this Bill, as well as others, reflected poorly on the
work of his office. Rather, he argued, it was part of the democratic process that allows various stakeholders to
engage with legislation through the parliamentary process.17
Considering the function of the state law adviser in the legislative process, why would ‘serial redrafting’ of a bill ‘reflect
poorly’ on the adviser’s office?
Once the state law adviser has had an opportunity to consider the proposed bill, it is introduced in
parliament for a first reading debate and published in the Government Gazette.18 At this stage, it
will also be referred to parliament’s joint tagging mechanism where it will be classified into one of
the following four categories:19
• a bill amending the Constitution
• an ordinary bill that does not affect the provinces
• an ordinary bill that affects the provinces
• a money bill (a bill that deals with taxes, levies and so on).
The bill is then referred to the relevant departmental portfolio committee in parliament. In terms of
sections 59(1)(a) and 72(1)(a) of the Constitution, the National Assembly and the NCOP
respectively must facilitate public involvement in the legislative process. To fulfil this mandate,
portfolio committees may organise public hearings to provide interested parties with an opportunity
to submit written comments and, in some cases, to make oral representations on the bill. The
members of the relevant portfolio committee must consider and debate the bill to determine whether
they are satisfied with the provisions of the bill. Should a bill not meet with the approval of the
portfolio committee, it will be amended to reflect the version with which the portfolio committee is
satisfied. Once the portfolio committee has concluded its work, it submits the bill or the amended
bill, together with a report, to the National Assembly for the second reading debate and a vote.
Different bills require different majorities in the National Assembly to be passed into law. A bill
that seeks to amend section 1 of the Constitution can only be passed with a 75% majority of the
members of the National Assembly as well as a majority of at least six of the nine provinces in the
NCOP.20 A bill contemplating the amendment of Chapter 2 of the Constitution (the Bill of Rights)
can only be passed with a majority of at least two-thirds of the members of the National Assembly
and a majority of at least six provinces in the NCOP.21 A bill that attempts to amend any other
provision of the Constitution requires at least a two-thirds majority in the National Assembly. If the
amendment also affects the NCOP or the provinces, a majority of six provinces in the NCOP is
required. All bills that are passed by parliament are submitted to the president for assent. Table 7.1
sets out the main steps in the legislative process at national level.
Table 7.1 The legislative process in summary
Forum Persons Stage of What happens at this stage?
involved legislative
process
National • Speaker of Introduction • The bill is delivered to the Speaker of Parliament and the Chairperson of
Assembly Parliament of bill the NCOP.
• Chairperson • The state law adviser considers the bill.
of NCOP
Parliament Members of First Members critically examine the proposed provisions and debate the
parliament reading of issues.
bill
Portfolio Committee Portfolio Portfolio committees for specific departments, for example Justice and
committee members committee’s Constitutional Development, peruse, critique and amend the proposed
first scrutiny provisions based on public comments and their specialised knowledge,
and send it back to parliament.
Parliament Members of Second Members critically examine the proposed provisions and debate the
parliament reading of issues.
bill
Portfolio Committee Portfolio The portfolio committee again peruses, critiques and amends the
committee members committee’s proposed provisions and sends it back to parliament.
second
scrutiny
Parliament Members of Vote Members of both houses of parliament vote in favour of or against the bill.
(National parliament
Assembly
and NCOP)
Government Government Publishing On publishing in the Government Gazette, the law nominally comes into
Gazette printer of act in effect. Its force and application, entirely or of some sections, may however
Government be postponed to a future date, depending on the specific provisions of the
Gazette act. For example, the Children’s Act22 came into effect in several stages
over several years.
7.4 Assent
As mentioned above, all bills passed by parliament must be submitted to the president for assent. In
terms of section 79(1) of the Constitution, the president is required either to assent to and sign a bill
into law or refer it back to the National Assembly for reconsideration if he or she has reservations
about the constitutionality of the bill. If, after reconsideration, the president is still not satisfied that
the bill fully accommodates his or her constitutional reservations, he or she must refer the bill to the
Constitutional Court for a decision on its constitutionality.23 Should the Constitutional Court find
that the bill satisfies constitutional requirements, the president must assent to and sign the bill into
law. Once the president has assented to and signed a bill, it becomes an act of parliament and must
be published in the Government Gazette. The act takes effect or comes into force when published or
on a date determined in terms of the act.24
Skills exercise 7.5
Find the case of Ex Parte President of the Republic of South Africa: In re Constitutionality of the Liquor Bill 2000 (1) SA
732 (CC) and read paragraphs 1 to 20.
1. Is the provision in section 79(4) of the Constitution (referral of a bill to the Constitutional Court for a decision on its
constitutionality) a unique feature of the South African Constitution? Is it found in the constitutions of any other legal
system?
2. Which three issues arose regarding the President’s referral in this particular case?
3. Outline the arguments that were presented in respect of each issue and state how they were resolved by the Court.
7.5 The legislative process at provincial level
Provincial legislatures have the following legislative authority:
• They can pass a constitution for their province and amend such a constitution.
• They can pass legislation for their province regarding matters listed in Schedules 4 and 5 of the
Constitution. These include, but are not limited to, matters regarding agriculture, airports,
casinos, housing, pollution control, public transport and so on.25
• They can pass legislation for the province outside the matters listed in Schedules 4 and 5 where
national legislation contemplates such legislation.
• They can pass legislation for their province on a matter envisaged by the Constitution.
Section 104(3) of the Constitution provides that a provincial legislature is bound only by the
Constitution, and if it has adopted a provincial constitution, also by that constitution.
Section 112 of the Constitution regulates the voting requirements for provincial legislatures. It
requires that a majority of the members of a provincial legislature must be present before a vote may
be taken on a provincial bill and that all the decisions are taken by a majority of the votes cast.
Provincial bills, once passed, are referred to the premier of the province for assent. The process that
regulates assent to provincial bills is, in substance, the same as the process that regulates assent by
the president to national legislation, discussed above.26
A provincial bill that has been assented to by the premier becomes a provincial act. It must be
published promptly in the Government Gazette and comes into force on the date of its publication or
on a later date determined in terms of the act.27
7.6 The legislative process at local level
Local government is the sphere of cooperative government that is ‘closest to the people’.28 The
legislative body of the municipality is the municipal council.29 Section 156 of the Constitution and
the Local Government: Municipal Systems Act provide guidelines for exercising legislative power30
at this level. Table 7.2 summarises the legislative process for municipal by-laws.
Table 7.2 Municipal legislative process for by-laws
Stage of legislative process What happens at this stage?
Initiation of proposed by-law Introduction of proposed by-law by member of council or committee to council.31
Publication of proposed draft by- Proposed by-law published for public comment.32
law for public comment
Public participation Representations made by the public in writing or at hearing.33
Public notice Notice given to public of council meeting.34
Passing by-law Council passes by-law by majority vote of its members.35
Publication of by-law New by-laws published in Provincial Gazette and, where possible, also in local
newspapers.36
Commencement of by-law Law takes effect on publication or at some future date determined in the by-law.37
Making by-laws available to the All by-laws should be bound and kept in a Municipal Code38 and made available to
public the public on request against the payment of a fee.
7.7 The hierarchy and status of legislation
According to Du Plessis,39 legislation in South Africa can be classified according to a hierarchy or
according to the criterion of status. Classification according to hierarchy is as follows:
• supreme law – the Constitution
• superordinate legislation – national legislation relative to provincial legislation and provincial
legislation relative to local legislation
• subordinate legislation, for example regulations legislated in terms of an act of parliament.40
In other words, this hierarchy implies that the Constitution is superior and that not even parliament
can make laws in conflict with it. In addition, the hierarchy implies that, generally, national
legislation (an act of parliament) takes precedence over provincial legislation41 and local legislation,
while provincial legislation ranks above local legislation.
PAUSE FOR REFLECTION
The spheres of government and the hierarchy of legislation that issues from it are sometimes more complicated than
what is represented above. This is illustrated by two recent cases.
In Johannesburg Metropolitan Municipality v Gauteng Development Tribunal,42 the Constitutional Court held that
provincial development tribunals established in terms of the Development Facilitation Act,43 which granted
applications for rezoning or for the establishment of townships, were, by so doing, encroaching on the functional area
of ‘municipal planning’. Municipal planning is contained as a functional area in Part B of Schedule 4 to the
Constitution. In terms of section 156(1)(a) of the Constitution, municipalities have ‘executive authority’ over the
matters listed in Part B of Schedule 4. This means that ‘the national and provincial spheres cannot, by legislation, give
themselves the power to exercise executive municipal powers or the right to administer municipal affairs’.44 The Court
held that the provisions of the Development Facilitation Act that established the provincial development tribunals were
inconsistent with section 156(1) of the Constitution precisely because these provisions attempted by legislation to
‘give themselves the power to exercise executive municipal powers’.45
In Maccsand (Pty) Ltd v City of Cape Town,46 the Minister for Mineral Resources (‘the Minister’) granted in terms of
the Mineral and Petroleum Resources Development Act (national law) licences for mining in respect of certain dunes
that had been zoned as ‘public open spaces’ in terms of provincial legislation. The same provincial legislation
prohibited the use of land for purposes other than the purposes for which it was zoned. The Minister and Maccsand
argued in the Constitutional Court that the provincial legislation that required appropriate zoning does not apply to
land used for mining but not zoned for such.47 In support of their argument, they contended that mining falls under the
exclusive competence of national government and that to allow provincial legislation on zoning to apply to it would
amount to the local sphere of government intruding into the terrain of the national sphere.48 The Constitutional Court
rejected this argument. The Court held that the spheres of government do not operate in ‘sealed compartments’49 and
that it could not be assumed that the granting of a mining right or permit simply cancelled out the requirements of the
provincial legislation that applies to that land.50 The Court held that the provincial legislation requiring zoning and the
national legislation in terms of which mining permits are granted are concerned with different subject matters and
therefore ‘operate alongside each other’.51 To quote the Court:
The fact that in this case mining cannot take place until the land in question is appropriately rezoned is therefore
permissible in our constitutional order. It is proper for one sphere of government to take a decision whose
implementation may not take place until consent is granted by another sphere, within whose area of jurisdiction
the decision is to be executed.52
With reference to status, Du Plessis distinguishes original and delegated legislation.53 The
Constitution, parliamentary, provincial and local legislation all qualify as original legislation.54
Delegated legislation differs from original legislation in that it must be authorised by and enacted
in terms of original legislation.55 Original legislation requires no such authority. This is why
delegated legislation is subordinate legislation although, in certain instances, it is indeed possible for
delegated legislation to trump original legislation.56
Whereas the authority to make original legislation vests in parliament and the provincial and local
legislatures, the authority to make delegated legislation vests in the executive, for example the
president, ministers or statutory bodies.57 It is important to remember that provincial and local
legislation is not delegated legislation. The by-laws of a local council are original legislation.58
7.8 Amendments and repeal
It is presumed in South Africa that statutes potentially have ‘perpetual existence’.59 However, this
does not imply that statutes, in fact, exist in perpetuity. What it means is that statutes will remain on
the country’s statute book unless they are validly repealed, amended or declared to be
unconstitutional and annulled.60 A change in government or government policy, as well as errors,
loopholes and lacunae in legislation, and also the need to make provision for newly arisen situations
often make it necessary to amend or even repeal legislation.
lacunae: gaps or missing parts
Amendment addresses the above-mentioned needs by changing an existing act of parliament.
This takes place by the passing of an amendment bill into law by a body that has at least the same
hierarchical status as the body that passed the original legislation.61
Repeal involves the termination or revocation of an act. Repeal can be express or implied.
Express repeal occurs when a new act expressly revokes another act or parts of such an act. This is
normally done by appending a schedule of laws repealed to the end of the new act.62 Implied
repeal is regulated by the principle that a later statutory provision that is clearly inconsistent and
irreconcilable with an earlier provision that is hierarchically equal or subordinate to the later
provision revokes the earlier provision to the extent of the inconsistency. A repeal comes into effect
in accordance with the same rules that apply to the commencement of legislation generally.63
7.9 Statutory interpretation
THINKING LIKE A LAWYER
The different meanings that potentially arise as a result of the inherent ambiguity of statutory language often lie at the
centre of legal disputes. Thinking like a lawyer not only involves being able to work with and argue about such
different interpretations. It also involves doing so in a manner that shows you are aware of how different
interpretations arise from different approaches to how meaning should be distilled from statutory wording. The
approaches, rules and principles that guide and discipline lawyers in their interpretative endeavours are known as the
rules of statutory interpretation.
In chapter 2 you saw that in the pre-constitutional era, courts, when interpreting legislation, mostly
thought that they had to seek the intention of the legislature and no more. The presumption here was
that the literal meaning of the words in the statute conveyed the intention of the legislature.64
The dawn of the era of constitutionalism in South Africa places a new obligation on courts when
interpreting legislation. Section 39(2) of the Constitution compels a court, when interpreting
legislation, to promote ‘the spirit, purport and objects of the Bill of Rights’. This means that all
interpretations of statute should be read in conformity with the Constitution. As Froneman J put it in
Matiso v Commanding Officer, Port Elizabeth Prison:65
The interpretative notion of ascertaining ‘the intention of the Legislature’ does not apply in a system of judicial review
based on the supremacy of the Constitution, for the simple reason that the Constitution is sovereign and not the
Legislature. This means that both the purpose and method of statutory interpretation in our law should be different
from what it was before the commencement of the Constitution on 27 April 1994. The purpose now is to test legislation
and administrative action against the values and principles imposed by the Constitution.
Du Plessis argues that the judicial obligation to interpret statutes in conformity with the Constitution
creates a ‘presumption of constitutionality’.66 What this presumption practically entails is that if it is
reasonably possible for a court to read a statutory provision that at first glance appears to be
unconstitutional in conformity with the Constitution, then the court is compelled to do so.
Skills exercise 7.6
In terms of section 1 of the Maintenance of Surviving Spouses Act, ‘survivor’ is defined as ‘the surviving spouse in a
marriage dissolved by death’. The word ‘spouse’ is not defined in this Act. In Daniels v Campbell,67 the applicant married
her deceased husband by Muslim rites. The marriage was not solemnised by a marriage officer appointed in terms of the
Marriage Act. One of the questions before the Court was whether Mrs Daniels could be considered to be a ‘surviving
spouse’ for purposes of the above Act. Consider the following extract from the judgment of Sachs J and answer the
questions that follow:
The word “spouse” in its ordinary meaning includes parties to a Muslim marriage. Such a reading is not linguistically
strained. On the contrary, it corresponds to the way the word is generally understood and used. It is far more
awkward from a linguistic point of view to exclude parties to a Muslim marriage from the word “spouse” than to
include them. Such exclusion as was effected in the past did not flow from courts giving the word “spouse” its
ordinary meaning. Rather, it emanated from a linguistically strained use of the word flowing from a culturally and
racially hegemonic appropriation of it. Such interpretation owed more to the artifice of prejudice than to the dictates
of the English language. Both in intent and impact the restricted interpretation was discriminatory, expressly exalting
a particular concept of marriage, flowing initially from a particular world-view, as the ideal against which Muslim
marriages were measured and found to be wanting. […] There seems to be no reason why the equitable principles
underlying the statutes should not apply as tellingly in the case of Muslim widows as they do to widows whose
marriages have been formally solemnised under the Marriage Act. The manifest purpose of the Acts would be
frustrated rather than furthered if widows were to be excluded from the protection the Acts offer […] The answer […]
must be in favour of the interpretation which is consistent with the ordinary meaning of the word “spouse”, aligns
itself with the spirit of the Constitution and furthers the objectives of the Acts.68
1. Explain what you consider to be the central legal problem the Court faced in this case as regards the constitutionality
of the Maintenance of Surviving Spouses Act.
2. Set out the Court’s reasoning (how it solved the above problem) as it appears from the extract.
If it is not possible to interpret a statute in accordance with the Constitution, the statute must be
declared unconstitutional. Section 39(2) has two further implications. First, a court should always
attempt, as a point of departure, to read the statute in conformity with the Constitution. Second, and
closely related to the first implication, is that section 39(2) allows a court to prefer a meaning that
was not previously attributed by an earlier court to the statutory provision in question if following
this new meaning will allow for the statute to be in conformity with the Constitution.
What is the position where two conflicting interpretations of a statutory provision could both be
said to be constitutional? In Wary Holdings (Pty) Ltd v Stalwo (Pty) Ltd,69 the Constitutional Court
held that where two conflicting interpretations of a statute can both be said to be ‘reflective of the
relevant structural provisions of the Constitution as a whole, read with other relevant statutory
provisions, the interpretation which better reflects those structural provisions should be adopted’.
Skills exercise 7.7
Read the following extract from the judgment of the Constitutional Court in National Coalition for Gay and Lesbian
Equality v Minister of Home Affairs70 and answer the questions that follow.
I accordingly hold that section 25(5) [of the Aliens Control Act 96 of 1991] constitutes unfair discrimination and a
serious limitation of the section 9(3) equality right of gays and lesbians who are permanent residents in the Republic
and who are in permanent same-sex life partnerships with foreign nationals. […] There is in my view no justification
for the limitation in the present case and it therefore follows that the provisions of section 25(5) are inconsistent with
the Constitution and invalid. […] I accordingly conclude that reading in is, depending on all the circumstances, an
appropriate form of relief under section 38 of the Constitution and that “whether a court ‘reads in’ or ‘strikes out’
words from a challenged law, the focus of the court should be on the appropriate remedy in the circumstances and
not on the label used to arrive at the result”. The real question is whether, in the circumstances of the present matter,
reading in would be just and equitable and an appropriate remedy. […] The legislature is empowered to amend or
fine-tune any extension that the Court, through its order, might make to section 25(5), or to do so with regard to any
related or relevant provision, in order to give more accurate effect to its policy, provided it does so in a manner which
is not inconsistent with the Constitution. […] Against the background of what has been said above I am satisfied that
the constitutional defect in section 25(5) can be cured with sufficient precision by reading in, after the word “spouse”,
the following words: “or partner, in a permanent same-sex life partnership”, and that it should indeed be cured in this
manner.71
1. When a court declares a statute unconstitutional as it did in this case, what are the options available to the court
according to this judgment?
2. Which of the above options did the Court choose in this case?
3. What would following the above option achieve with regard to the statute’s relationship with the Constitution?
4. Why does the option above not amount to the Court taking over the work of the legislature?
There is still on our statute books a pre-constitutional Act that attempts to guide certain aspects of
the interpretation of statutes. This Act is called the Interpretation Act. The Interpretation Act,
however, serves merely as a tool ‘for the purposive interpretation of statutes in conformity with the
Constitution’. From the common law (Roman-Dutch as well as English law),712 we also have the
canons of construction. These are so-called ‘rules and presumptions of statutory interpretation’.73
Like the Interpretation Act, the canons of construction are not hard and fast rules for statutory
interpretation – they serve merely as aids in the reading of statutes in accordance with the
Constitution.
As regards specifically the presumptions, the latter is inherent in their nature as rebuttable
presumptions.74 The Constitutional Court has indicated that ‘a question mark has to be placed over
the usefulness of common law presumptions in interpreting the Constitution’.75 However, as Du
Plessis notes, nothing was said about the role of the presumptions in the interpretation of statutes in
general.76 We should nevertheless bear in mind that the presumptions are common law and, as such,
subject to the Constitution. Despite this, Du Plessis suggests that the presumptions still have a role
to play in our constitutional era in that they can ‘supplement, facilitate and mediate resort to
constitutional values in statutory interpretation’.77 They can in addition be used to advance and
amplify values that are consistent with the Constitution but not expressly mentioned in it.78
Du Plessis identifies the presumptions that are most probably not inconsistent with the
Constitution, but that are also not subsumed by it. We discuss these below:79
• The presumption against retrospectivity: This presumption holds that a statute applies
prospectively unless there is compelling evidence to the contrary. The idea behind the
presumption is that it is unfair to legislate retrospectively against or for actions that have been
completed. For example, Andrew kills Lance negligently in 1976. In 1978, he is convicted of
culpable homicide. In 1988, the legislature passes a law that provides that a person can be
charged for murder where a killing is negligent. The law applies retrospectively from 1 January
1976. The presumption now operates in such a way that Andrew, whose actions are completed,
cannot now be charged for murder. However, there are a number of exceptions to this
presumption. You will encounter these exceptions in the LLB course on statutory interpretation
where this is offered.
• Statute law is not invalid or purposeless: According to this presumption, ‘statutes are meant to
be of effect’. The presumption implies that the words of a statute must be interpreted in such a
way that the statute has effect rather than is invalid.
• References in legislation to conduct are references to valid and/or permissible conduct: The
presumption here is that regular action, conduct and omissions (practice) in institutions and
regulated bodies are also valid or permissible conduct. A reference in a statute to ‘proceedings’,
therefore, is taken to refer to regular and legal proceedings, not exceptional or unpermitted
proceedings. Similarly, a reference to ‘permission’ means valid, regular and legal permission.
• Delegated legislative powers are to be exercised by the person to whom they are delegated:
This is a presumption against sub-delegation. It provides that where a power has been delegated
to a specific person, for example ‘the Registrar of the High Court’, then that power must be
exercised by him or her – it cannot be further delegated to a subordinate below the Registrar. The
presumption normally prohibits the sub-delegation of a discretionary or legislative power, but
remember that this is simply a presumption. This means that where sub-delegation occurs
responsibly and accountably, the sub-delegation will not be struck by the presumption.
• Remedial statutes must be construed generously: Where a statute contains a remedy to address
a past injustice or ‘mischief’, the statute should be construed generously, that is, the remedy will
be extended to as many subjects as possible. Du Plessis points out that the Constitution is itself a
remedial instrument and, for this reason, the Constitutional Court has favoured a ‘generous
interpretation’ of the Bill of Rights.
• Legislation has no effect outside the borders of the country in which it was enacted: This
presumption respects the sovereignty of nations and the fact that a legislature should not have the
power to act beyond the limits of its jurisdiction.
• The same words and phrases in a statute bear the same meaning: The presumption rests on a
further presumption that legislatures use language consistently within the parameters of one
enactment. Multiple references to ‘survivor’ in the Maintenance of Surviving Spouses Act
mentioned above are thus taken to have the same meaning. However, the presumption does not
operate across statutes. A reference in the Aliens Control Act80 to a ‘spouse’ thus may not bear
the same meaning as the same reference in the Marriage Act.
Skills exercise 7.8
Read the following sections from the Civil Union Act and answer the question that follows.
Solemnisation of civil union
4. (1) A marriage officer may solemnise a civil union in accordance with the provisions of this Act.
(2) Subject to this Act, a marriage officer has all the powers, responsibilities and duties as conferred upon him
or her under the Marriage Act to solemnise a civil union.
Designation of ministers of religion and other persons attached to religious denomination or organisation
as marriage officers
5. (1) Any religious denomination or organisation may apply in writing to the Minister to be designated as a
religious organisation that may solemnise marriages in terms of this Act.
(2) The Minister may designate such a religious denomination or organisation as a religious institution that may
solemnise marriages under this Act and must from time to time publish particulars of all religious institutions
so designated in the Gazette.
(3) The Minister may, on request of any designated religious institution referred to in subsection (2), revoke the
designation under that subsection and must publish such revocation in the Gazette.
(4) The Minister and any officer in the public service authorised thereto by him or her may designate, upon
receiving a written request from any minister of religion or any person holding a responsible position in any
designated religious institution to be as long as he or she is such a minister or occupies such position, a
marriage officer for the purpose of solemnising marriages in accordance with this Act and according to the
rites of that religion.
Identify all the presumptions of statutory interpretation that may pertain to the interpretation of these sections. In each
case, explain why the presumption is applicable.
THIS CHAPTER IN ESSENCE
1. This chapter discussed the process by way of which legislation comes into being in
South Africa. The Constitution makes provision for a three-tier system of legislative
power: national, provincial and local. Legislation can be classified according to this
hierarchy and can also be classified according to the distinction between original and
delegated legislation.
2. The passing of a statute is the initial process whereby the text of an enactment is
finalised. Promulgation occurs after passing and is necessary to bring the enactment
into operation. Promulgation usually occurs through publication in the Government
Gazette or relevant provincial gazette.
3. The legislative process at national level is summarised in Table 7.1. Once a statute
has been through this process, it must be assented to by the president.
4. The legislative process at provincial level follows the same procedure as that of
national legislation. A provincial bill is assented to by the premier of the province.
5. The municipal legislative processes for by-laws is summarised in Table 7.2.
6. Classification of legislation according to hierarchy is as follows:
6.1 supreme law – the Constitution
6.2 superordinate legislation – national legislation relative to provincial legislation and
provincial legislation relative to local legislation
6.3 subordinate legislation, for example regulations legislated in terms of an act of
parliament.
7. Statute law may be amended, repealed or declared unconstitutional and annulled by
the Constitutional Court.
8. With regard to the rules of statutory interpretation, note the overriding importance of
section 39(2) of the Constitution, as well as the role of the Interpretation Act and the
canons of construction, specifically the common law presumptions, in a constitutional
era.
Notes
1 See ch 5.
2 Du Plessis, L.M. 2006. Statute law and interpretation. In Law of South Africa 2nd ed., vol. 25(1) para 302.
3 Ibid.
4 33 of 1957 (the ‘Interpretation Act’).
5 Du Plessis supra n 2 at para 302.
6 1952 All SA 7 (N).
7 R v Zuma 1952 (3) SA 462.
8 Du Plessis supra n 2 at para 302.
9 Ibid. See also ch 2.
10 Ibid.
11 Ibid.
12 S 16A of the Interpretation Act.
13 Ibid.
14 S 42(4) of the Constitution.
15 2006 (1) SA 524 (CC).
16 25 of 1961 (the ‘Marriage Act’).
17 Donnelly, L. 2011. State law adviser says Info Bill is democracy in action. Mail and Guardian, 12 August.
[Online]. Available at: http://mg.co.za/article/2011-08-12-state-law-adviser-says-info-bill-is-democracy-in-action/ [6
July 2012].
18 Parliamentary Monitoring Group. The legislative process. [Online].
Available atAvailable at: http://www.pmg.org.za/parlinfo/sectionb3 [28 February 2012].
19 Department of Justice and Constitutional Development. 2012. The legislative process. [Online].
Available atAvailable at: http://www.justice.gov.za/legislation/legprocess.htm [28 February 2012].
20 S 74(1) of the Constitution.
21 Ibid s 74(2).
22 38 of 2005 (the ‘Children’s Act’). This Act was published in 2005 but some of its provisions only came into
effect in 2007.
23 Ss 79(4)(b) and 84(2)(c) of the Constitution.
24 Ibid s 81.
25 For a full list of the provincial legislative competencies, see Schedules 4 and 5 of the Constitution.
26 In re Constitutionality of the Mpumalanga Petitions Bill 2002 (1) SA 447 (CC).
27 S 123 of the Constitution.
28 Van Wyk, J. 2007. Local government. In LAWSA 2nd ed., vol 15(1) para 13.
29 S 151(2) of the Constitution.
30 In Chapter 3 generally, ss 12–15 specifically.
31 Ibid s 12(1).
32 Ibid s 12(3)(b).
33 Ibid.
34 Ibid s 19.
35 Ibid s 12(2)(b).
36 Ibid s 13(a).
37 Ibid s 13(b).
38 Ibid s 15.
39 Du Plessis supra n 2 at para 294.
40 Ibid at para 295.
41 Ibid. This is the position where the Constitution does not allocate matters to any other legislature. Schedule 5
of the Constitution does give provincial legislatures exclusive legislative authority in certain matters. In these matters
the provincial legislation ranks above national legislation. Parliament can only intervene in these matters under
exceptional circumstances.
42 2010 (6) SA 182 (CC).
43 67 of 1995 (the ‘Development Facilitation Act’).
44 Johannesburg Metropolitan Municipality supra n 42 at para 59.
45 Ibid at para 70.
46 CCT 103/11 [2012] ZACC 7 (12 April 2012).
47 Ibid at para 40.
48 Ibid at para 41.
49 Ibid at para 43.
50 Ibid at para 44.
51 Ibid at para 46.
52 Ibid at para 48.
53 Du Plessis supra n 2 at para 296.
54 Ibid at para 298.
55 Ibid at para 296.
56 Ibid at para 299. This is the case where national delegated legislation trumps provincial original legislation
and also where local original legislation is trumped by provincial delegated legislation.
57 Ibid.
58 Ibid.
59 Ibid at para 304.
60 Ibid.
61 Ibid.
62 Ibid at para 305.
63 Ibid at para 306.
64 Ibid at paras 320 and 321.
65 1994 (3) BCLR 80 (SE) at paras 87E–G.
66 Du Plessis supra n 2 at para 330.
67 2004 (7) BCLR 735 (CC).
68 Ibid at paras 19, 23 and 25.
69 2008 (11) BCLR 1123 (CC) at para 47.
70 2000 (1) BCLR 39 (CC).
71 Ibid at paras 57, 59, 70, 84 and 86.
72 Du Plessis supra n 2 at para 324.
73 Ibid.
74 Ibid at para 333.
75 S v Mhlungu 1995 (7) BCLR 793 (CC) at para 115.
76 Du Plessis supra n 2 at para 333.
77 Ibid.
78 Ibid.
79 Du Plessis supra n 2 at paras 341–347.
80 96 of 1991 (the ‘Aliens Control Act’).
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